LORD    STOWELL 


LORD  STOWELL 

HIS  LIFE  AND  THE  DEVELOPMENT 
OF  ENGLISH  PRIZE  LAW 


BY 

E.   S.   ROSCOE 

REGISTRAR  OF  THE  PRIZE  COURT  OF  GREAT  BRITAIN  AND  IRELAND 
EDITOR  OF  4i  ENGLISH  PRIZE  CASES  " 


BOSTON  AND  NEW  YORK 

HOUGHTON  MIFFLIN  COMPANY 

1916 


Printed  in  Great  Britain. 


PEEFATORY   NOTE 

ONE  result  of  the  Great  War  has  been  a 
renewed  interest  in  Lord  Stowell's  personality 
and  in  his  judicial  work.  But  his  biography 
in  Townsend's  Twelve  Eminent  Judges,  and 
the  combined  biography  of  the  two  Scotts 
in  Surtees'  short  Lives  of  Lord  Eldon  and 
Lord  Stowell,  were  published  in  1848  and  are 
now  out  of  print.  The  reader  therefore  who 
desires  to  become  acquainted  with  Stowell's 
career  is  left  for  a  modern  biography  to  a 
slight  sketch  in  a  work  called  Great  Jurists 
of  the  World,  and  to  the  brief,  though,  from 
its  authorship,  important  article  in  the 
Dictionary  of  National  Biography.  The  first 
aim,  therefore,  of  the  following  pages  is  to 
present  an  impression  of  Stowell  as  a  man, 
from  which,  supplemented  by  the  tabular 
statement  at  the  commencement  of  the  book, 
a  clear  view  can  be  obtained  of  the  course  of 
his  life.  The  second  aim  is  to  enable  a  reader 
to  realize  Stowell's  judicial  work,  to  collect 
and  to  formulate  thoughts  and  criticisms 


372344 


vi  LORD  STOWELL 

which  a  perusal  of  his  decisions  arouses,  and 
to  define  the  achievements  of  a  judge  and  a 
jurist  whose  influence  on  one  branch  of  British 
jurisprudence — of  international  as  well  as  of 
national  value — was  individual,  important,  and 
permanent. 

Two  portraits  of  Lord  Stowell  may  be  seen 
at  Oxford — one  painted  in  1807  by  Hoppner, 
is  at  University  College;  another  painted 
in  1827  by  T.  Phillips,  is  at  Corpus  Christi 
College.  In  the  Library  of  University  College 
is  a  statue  on  the  same  pediment  as  one  of 
Lord  Eldon.  A  third  portrait  by  Phillips  is  in 
the  Council  Chamber,  Town  Hall,  Newcastle- 
upon-Tyne. 


CONTENTS 


CHRONOLOGICAL  TABLE 


PAGE 
ix 


CHAPTER   I 

BIOGRAPHICAL  :     1745-1780 — OXFORD — THE   JOHNSON 

CIRCLE          ....  ] 


CHAPTER  II 

BIOGRAPHICAL  :   1780-1836 — ADVOCATE — JUDGE    . 


16 


CHAPTER   III 

THE  PRIZE  COURT  AND  PRIZE  LAW 


28 


CHAPTER   IV 

STOWELL'S  JUDICIAL  WORK  AND  ITS  RESULTS 


40 


CHAPTER  V 
SOME  ILLUSTRATIVE  JUDGMENTS    . 


53 


CHAPTER   VI 

THE    STOWELL   CASE    LAW   AND   THE    DECLARATION   OF 
LONDON        ....... 

vii 


70 


viii  LORD  STOWELL 

CHAPTER   VII 

PAGE 

THE  STOWELL  CASE  LAW  IN  THE  GREAT  WAR     .         .          80 

CHAPTER   VIII 

STOWELL  AS  JUDGE  OF  THE  HIGH  COURT  OF  ADMIRALTY         94 

APPENDICES 

I.  REPORTS  WHICH  CONTAIN  LORD    STOWELL'S  JUDG- 
MENTS, AND  NOTE  ON  SOME  MS.  NOTES  BY  HIM     .       103 

II.  CONTRABAND  AND  BLOCKADE          .         .         .         .105 

III.  LIST  OF  LORD  STOWELL'S  PRINCIPAL  PRIZE  DECISIONS 

IN  CHRONOLOGICAL  ORDER         .         .         .         .        110 

IV.  DOCTORS'  COMMONS  IN  1598          .         .         .         .        113 
INDEX  115 


CHRONOLOGICAL  TABLE 


1745   October  17 


1761   February  24 


1761 
1762 
1764 
1764 

1765 
1767 
1772 
1774 

1777 


1779 
1779 


1780 
1781 


1782 
1783 


March  3 
June  24 
November  20 
December  13 

June  14 
June  17 
May  30 


June  23 
November  5 


February  11 
April  7 


May  21 


Born  at  Heworth,  County  Durham.  Eldest 
son  of  William  Scott  of  Newcastle-upon- 
Tyne,  one  of  the  Guild  of  ' '  Hoastmen," 
shipbroker,  and  merchant,  who  died  in 
1776,  and  of  Jane,  daughter  of  Henry 
Atkinson  of  Newcastle,  merchant ;  she 
died  18th  July  1800. 

Elected  a  Durham  Scholar  of  Corpus  Christi 
College,  Oxford,  after  education  at  New- 
castle Grammar  School. 

Matriculated. 

Student  of  Middle  Temple. 

B.A. 

Probationary  Fellow  of  University  College. 
Resigned  Fellowship  April  7,  1782. 

Actual  Fellow,  and  Tutor  till  1776. 

M.A. 

B.C.L. 

Elected  Camden  Reader  of  Ancient  History ; 
resigned  1785. 

Took  chambers  and  lived  at  3  King's  Bench 
Walk,  Temple,  and  began  to  keep  Terms, 
but  did  not  leave  Oxford  finally  till  1780. 

D.C.L. 

Enrolled  as  an  Advocate  of  the  College  of 
Doctors  at  Law  exercent  in  the  Ecclesi- 
astical and  Admiralty  Courts. 

Called  to  the  Bar,  Middle  Temple. 

Marriage  to  Maria  Anne,  eldest  daughter 
and  co-heiress  of  John  Baguall,  Esq., 
of  Erleigh  Court,1  Reading,  who  pur- 
chased it  in  1766  ;  she  died  on  September 
4,  1809.  The  Scotts  lived  at  5  College 
Square,  Doctors'  Commons. 

Appointed  Advocate  of  the  Admiralty. 

Appointed  Registrar  of  the  Court  of 
Faculties. 


1  See  Erleigh  Court  and  its  Owners,  by  E.  W.  Dormer,  Poynder, 
Reading,  1912. 

ix 


x  LORD  STOWELL 

1784  ...  Elected  M.P.  for  Downtou,  Wiltshire,  but 

was  unseated  on  petition. 

1788  August  30  Appointed  Judge  of  the  Consistory  Court 
of  the  Diocese  of  London ;  resigned 
1821. 

1788      September  3      Appointed  King's  Advocate. 

1788  '    ...  Knighted. 

1788  September  24  Appointed  Vicar-General  of  the  Province 
of  Canterbury. 

1790  ...  Elected  M.P.   for  Downton,  through  the 

influence  of  Lord  Radnor  who  had  been 
his  pupil  at  Oxford. 

1790      April3  Appointed  Master  of  the  Faculties. 

1798  October  26  Appointed  Judge  of  the  High  Court  of 
Admiralty. 

1801       March  23  Elected  M.  P.  for  the  University  of  Oxford. 

1813      April  10  Second    marriage    to    Louisa    Catherine, 

Dowager  Marchioness  of  Sligo,  and 
youngest  daughter  of  Richard,  first 
Earl  Howe  ;  she  died  at  Amsterdam  on 
the  20th  August  1817.  On  this  marriage 
Lord  Stowell  removed  to  11  Grafton 
Street.  He  had  lived  at  47  Leicester 
Square  from  1807  to  1809,  and  then  at 
16  Grafton  Street.  Subsequently  Lord 
Stowell  lived  at  16  Cleveland  Row,  after 
Lady  Sligo's  death  at  11  Grafton  Street. 

1821       July  17  Created  Baron  Stowell  of  Stowell   Park, 

County  Gloucester. 

1827  December  27  Resigned  Judgeship  of  High  Court  of 
Admiralty. 

1836  January  28  Died  at  Erleigh  Court  and  was  buried  on 
February  3  at  St.  Andrew's  Church, 
Sonning,  Berks,  leaving  an  only  daughter 
surviving  him  (his  only  son  William 
died  on  November  26,  1835,  aged  42), 
Maria  Anne  Viscountess  Sidmouth,  who 
died  26th  April  1842,  when  Lord 
Stowell's  lauded  property  descended  to 
his  nephew,  Viscount  Encombe,  son  of 
the  Earl  of  Eldon.  Lord  Stowell's  estate 
was  sworn  under  £250,000. 
At  Sonning  there  is  a  memorial  brass  in 
the  South  Aisle  and  a  mural  monument 
over  the  doorway  of  the  North  Aisle. 
In  the  Temple  Church  is  a  tablet  to  the 
memory  of  Lords  Stowell  and  Eldon, 
erected  by  the  Society  of  the  Middle 
Temple  ( '  to  the  memory  of  these  highly 
distinguished  brothers." 


CHAPTER  I 

BIOGRAPHICAL 
1745-1780 

OXFORD — THE  JOHNSON  CIRCLE 

ON  the  17th  of  October  1745,  and  again  on 
June  4,  1751,  a  son  was  born  to  William 
Scott  "  hoastman,"  coal  merchant,  broker 
and  shipowner  of  Newcastle  -  upon  -  Tyne. 
William,  the  elder  of  these  two  boys,  be- 
came Lord  Stowell,  the  creator  of  a  definite 
and  reasoned  body  of  prize  law  in  Great 
Britain  and  in  the  United  States.  John, 
the  younger,  afterwards  Lord  Eldon,  was  for 
many  years  Lord  Chancellor  of  England. 
William  Scott  in  his  own  generation  achieved 
repute  as  a  civil  lawyer — for  his  knowledge 
of  ecclesiastical,  of  Admiralty  and  of  prize 
law  was  remarkable,  but  he  certainly  was  not 
then  regarded  as  more  noteworthy  than  other 
successful  lawyers  of  his  time,  and  when, 
in  1805,  there  were  rumours  at  Westminster 
that  he  was  about  to  receive  a  peerage  it  was 

i  B 


2  LORD  STOWELL 

not — as  we  should  have  expected — looked  on 
as  an  approaching  reward  for  high  judicial 
services,  but  for  his  silent  votes  in  Parliament. 
" 1  hope,"  wrote  Fox  to  Windham,  "  that 
our  friend  Sir  William  will  not  have  his  peerage, 
and  that  his  close  attendance  and  voting 
through  thick  and  thin  will  not  avail  him." 
He  was  considered  by  his  contemporaries  a 
clever  and  agreeable  person ;  "a  very  useful 
ingenious  man "  was  a  description  of  him 
when  he  was  a  tutor  at  Oxford ;  "  one  of  the 
pleasantest  men  I  ever  knew,"  was  Sir  Walter 
Scott's  estimate  of  him  in  later  life.  But 
not  one  of  Scott's  contemporaries  foresaw 
that  from  an  able  Oxford  tutor  and  a  success- 
ful lawyer  he  would  become  a  famous  jurist, 
and  as  the  names  of  the  eminent  judges  of 
the  later  part  of  the  eighteenth  and  of  the 
beginning  of  the  nineteenth  centuries  became 
more  and  more  obscured  by  the  enveloping 
mists  of  time,  that  of  Stowell  would  continue 
to  emerge,  till  it  stands  among  those  of  the 
great  jurists  of  the  world,  and  as  of  one  who 
has  attained  a  positive  and  unique  fame  on 
both  sides  of  the  Atlantic  as  the  creator  of  the 
modern  prize  law  of  England  and  America. 

William  Scott  was  elected  to  a  scholarship 
at  Corpus  Christi  College,  Oxford,  in  February 
1761 ;  he  finally  left  the  University  in  1780, 
when  he  was  thirty-five.  He  had  then  been  an 


THE  JOHNSON  CIRCLE  3 

actual  Fellow  and  a  tutor  of  University  College 
since  1765,  and  a  University  professor — Cam- 
den  Reader  of  Ancient  History — since  1773.  In 
fact  he  did  not  resign  the  Readership  till  1785, 
and  thus  continued  in  academic  connection 
with  his  University  after  he  had  embarked 
on  an  active  professional  career  in  London. 

In  the  eighteenth  century  it  was  largely 
a  matter  of  temperament  whether  a  tutor  at 
Oxford  or  Cambridge  was  sluggardly  or  active, 
for  he  was  left  to  his  own  devices,  and  "  com- 
paratively little  help  was  given  to  the  learner." 
Colleges  were  filled  with  Fellows,  middle-aged 
and  old,  who  "  were  like  drone  bees,"  and  the 
younger  and  more  energetic,  who  were  probably 
in  a  quiet  way  less  inactive  than  is  often 
supposed,  were  lost  in  the  supine  crowd  which 
was  the  easy  butt  of  every  University  satirist. 
Scott,  as  his  whole  life  showed,  though  not 
ambitious  in  the  popular  acceptation  of  the 
word,  had  a  high  sense  of  public  duty  and  an 
unobtrusive  energy  which  urged  him  to  achieve- 
ment, and  he  became,  without  pressure,  an 
efficient  and  conscientious  teacher.  John 
Barton  of  Corpus  Christi  College  and  William 
Scott  of  University  College  are  mentioned  by 
Gibbon  in  his  Autobiography  as  two  men 
who  realized  their  academic  responsibilities. 
Scott's  activities  even  extended  beyond  his 
college ;  he  originated  a  scheme  for  increasing 


4  LORD  STOWELL 

the  funds  of  the  Bodleian  Library  by  means 
of  an  annual  payment  by  those  entitled  to  use 
it,  and  by  a  small  fee  on  matriculation,  and 
he  assisted  in  the  raising  of  a  loan  for  the 
purchase  of  certain  objects  of  art  for  the 
University  Galleries.  In  the  world  of  Oxford 
in  his  day  William  Scott  clearly  stood  far 
above  the  many  idlers  and  mediocrities  who 
sat  around  the  college  high  tables,  he  was  one 
of  the  few  "  good  tutors,"  and  he  may  be 
regarded  also  as  one  of  those  through  whose 
efforts  and  example  the  University  at  the 
end  of  the  century  began  to  improve. 

The  academic  and  social  atmosphere  of 
Oxford  affected  Scott's  personal  and  pro- 
fessional career  not  less  than  his  work  as  a 
judge.  In  his  day  an  Oxford  Common  Room 
was  a  sociable  place,  it  contained  both  learned 
and — it  must  be  admitted — very  idle  persons, 
but  those  who  entered  it  lived  well,  port  wine 
and  classical  lore  made  them  excellent  company. 
The  impress  of  University  College  never  left 
Stowell  throughout  his  life.  But  he  carried 
his  learning  lightly,  uniting  with  it  a  northern 
shrewdness  which  produced  a  rare  judicial 
combination,  and  enabled  him  to  leave  to 
posterity  a  continuing  fame  as  a  jurist,  and 
property  which,  in  technical  language,  was 
sworn  for  probate  under  two  hundred  and 
fifty  thousand  pounds. 


THE  JOHNSON  CIRCLE  5 

The  year  1776  was  a  crucial  one  for  Scott 
and  changed  the  course  of  his  life.  It  is  pro- 
bable that  the  death  of  his  father,  by  which  he 
became  a  man  of  independent,  though  small, 
means,  and  therefore  free  from  pecuniary 
anxieties,  had  to  do  with  this  alteration  in  his 
career.  He  inherited  the  residue  of  his  property, 
which  is  said  to  have  amounted  to  £20,000. 
It  was,  at  any  rate,  a  substantial  sum,  and  as 
the  emoluments  of  his  fellowship  were  sufficient 
for  his  personal  needs  he  even  began  to  save 
money,  as  he  continued  to  do  throughout  his 
life.  His  economical  habits  were  the  result 
of  his  northern  shrewdness,  but  as  he  grew  older 
prudence  degenerated  into  parsimony.  Some- 
times this  shrewdness  produced  a  selfish  attitude: 
"  for  my  own  part,"  he  wrote  in  a  pessimistic 
temper  to  his  brother  Henry,  upon  the  surrender 
of  Yorktown,  in  1777,  "  I  am  sick  of  politics  : 
there  is  so  much  folly  on  the  part  of  ministers, 
and  so  much  villany  of  the  other  side,  under 
the  cloak  of  patriotism,  that  an  honest  man 
has  nothing  to  do  but  to  lament  the  fate  of  his 
country,  and  butter  his  own  bread  as  well  as 
he  can,  and  I  hope  you  take  care  to  do  so." 
Stowell  throughout  his  life  never  failed  in 
buttering  his  own  bread,  and  it  was  with  the 
same  idea,  altruistically  applied,  that  char- 
acteristically he  gave  the  larger  part  of  his 
property  to  his  son  in  his  own  lifetime  to 


6  LORD  STOWELL 

escape  the  legacy  duty.  But  as  has  happened 
in  similar  cases,  by  an  irony  of  fate,  the  son 
died  before  the  father,  so  that  the  only  result 
of  this  attempt  at  posthumous  economy  was 
the  payment  by  himself  of  legacy  duties  on 
his  son's  estate. 

To  return,  however,  to  1776,  the  important 
fact  is  that  in  this  year,  confident  in  his  own 
powers,  Stowell  relinquished  his  tutorial  duties 
and  surrendered,  when  he  was  approaching 
middle  age,  an  assured  and  already  distinguished 
academical  career  for  the  uncertainties  of  a 
professional  life ;  he  entered  on  a  period 
wherein  his  mind  was  wholly  engrossed  in 
preparation  for  his  subsequent  work  as  a 
jurist.  This  intermediate  space  lasted  for  four 
years,  during  which  he  lived  partly  in  London 
and  partly  at  Oxford.  But  he  continued  to 
prepare  and  deliver  the  Camden  lectures,  which 
greatly  increased  his  academic  reputation  and 
gave  him  a  high  place  in  the  estimation  of 
scholars  and  men  of  letters.  These  lectures 
have  never  been  published,  and  they  remain, 
therefore,  only  traditional  evidence  of  Scott's 
academic  learning  and  ability.  During  the 
last  year  of  this  period  he  was  already  an 
advocate  of  Doctors'  Commons,  though  in 
accord  with  the  rescript  of  the  Archbishop  of 
Canterbury — by  whom  Doctors  of  Law  were 
admitted  to  the  Faculty  of  Advocates — he 


THE  JOHNSON  CIRCLE  7 

was  unable  to  practise  during  the  so-called 
year  of  silence.  Its  main  interest  lies  in  the 
fact  that  it  enabled  Scott  to  add  largely  to 
his  store  of  legal  learning,  and  in  addition 
to  his  knowledge  of  civil  law,  to  make  himself 
thoroughly  familiar  with  the  history  of  the 
English  Common  Law  and  with  the  decisions 
of  the  Courts  at  Westminster,  knowledge  which 
subsequently  was  clearly  evinced  in  more  than 
one  important  case. 

Eighteen  years  form  a  substantial  part  of  a 
lifetime,  and  those  which  Scott  passed  at  Oxford 
inevitably  had,  as  has  already  been  pointed 
out,  a  permanent  effect  on  his  work  as  a  lawyer 
and  on  his  subsequent  social  life.  He  never 
seems,  however,  once  he  had  embarked  on  a  pro- 
fessional career,  to  have  reverted  to  his  classical 
and  historical  studies  as  a  pastime  during  his 
professional  and  judicial  life  ;  he  was  one  who 
concentrated  his  mind  on  the  work  which  lay 
before  him,  and  when  history  and  the  classics 
had  served  his  purpose  he  closed  his  classical 
and  historical  books.  But  StowelPs  Oxford 
years  made  him  for  one  thing  a  unique  example 
of  an  academic  lawyer  ;  no  one  quite  like  him 
ever,  in  modern  times,  occupied  a  high  judicial 
position.  Before  he  began  to  earn  fees  in 
London  he  had  been  an  industrious  student 
and  an  able  teacher,  and  he  was  a  learned 
and  broad-minded  scholar.  Thus  owing  to 


8  LORD  STOWELL 

his  life  and  work  at  Oxford  he  became,  unlike 
most  eminent  English  lawyers,  a  scientific 
jurist.  He  had  not  been  nurtured  on  special 
pleading,  on  technical  rules  of  equity  or  on 
judicial  precedents  collected  in  a  long  series 
of  reports;  he  especially  valued  form  and 
style,  qualities  which  were  essentially  those 
of  a  University  professor  rather  than  of  a 
lawyer  educated  in  the  Temple  or  at  Lincoln's 
Inn. 

The  years  during  which  Scott  had  enjoyed 
a  genial  Common  room  and  an  ample  high 
table  had  given  him  a  liking  for  good  living; 
beef  steak  and  oyster  pudding  is  said  to  have 
been  his  favourite  dish,  and  a  bottle  or  two 
of  port  was  his  habitual  beverage.  He  had 
an  excellent  constitution  and  a  good  digestion, 
and  if  he  lived  well  he  lived  long.  But  there 
was  a  finer  side  to  StowelPs  social  life.  It 
was  through  his  fellowship  at  University 
College  that  he  became  known  to  Dr.  Johnson, 
and  that  a  friendship  grew  up  which  presently 
had  a  fortunate  influence  on  StowelPs  social 
life  in  London. 

Robert  Chambers  (b.  1737),  a  Newcastle 
man  like  Scott,  was  also  a  Fellow  of  the  same 
college,  he  knew  Johnson  well,  and  it  was 
on  a  visit  by  Johnson  to  Chambers  at  Oxford 
that  Scott  and  Johnson  became  acquainted. 
Chambers  was  appointed  to  a  judgeship  in 


THE  JOHNSON  CIRCLE  9 

India  in  1774,  and  when  he  left  England, 
Stowell,  as  he  said  to  Croker,  "  seemed  to 
succeed  to  his  place  in  Johnson's  friendship." 
He  was  Johnson's  host  in  the  summer  of  1777. 
"  I  have  laid  aside,"  he  wrote  to  his  brother 
Henry,  on  August  6,  "  all  thoughts  of  coming 
down  to  Newcastle  for  the  year,  having  devoted 
the  summer  to  solitude  and  study  at  Oxford. 
.  .  .  The  University  is  very  empty ;  I  have 
had  my  friend  Johnson  staying  with  me  for 
a  fortnight."  1 

Perhaps  Johnson  was  thinking  of  this  visit 
when,  in  one  of  his  talks  with  Boswell,  he  said 
that  University  College  had  seen  him  drink  three 
bottles  of  port.  At  any  rate,  from  this  story 
we  see  a  glimpse  of  Oxford  in  the  eighteenth 
century,  as  well  as  of  the  habits  of  Johnson's 
two  friends. 

Through  his  sojourn  at  Oxford,  Stowell 
appreciated  cultivated  and  friendly  company ; 
he  would  have  enjoyed  the  learned,  easy  and 
witty  intercourse  earlier  in  the  century,  when 
Harley,  Bolingbroke,  Swift,  Gay  and  other 
men  of  letters  forgathered  at  the  Coffee- 
houses or  in  their  apartments  to  dine  and 
discuss  politics  and  literature.  His  election 
to  the  Literary  Club  in  1778,  the  same  year 
in  which  Sheridan,  Lord  Ashburton,  Sir  Joseph 
Banks,  Windham  and  Lord  Spencer  were  ad- 

1  Townsend,  Twelve  Eminent  Judges,  p.  290. 


10  LORD  STOWELL 

mitted  to  it,  is  evidence  enough  of  StowelFs 
sociability  not  less  than  of  his  intellectual  gifts. 
He  was  not,  so  far  as  one  can  see,  a  witty  or 
a  humorous  talker,  but  he  had  a  great  fund 
of  information,  an  excellent  memory  and  a 
pleasant  manner.  The  few  anecdotes  which 
exist  of  his  conversation  happily  do  not  contain 
faded  bons-mots  but  are  evidence  of  these 
substantial  attainments.  His  social  qualities 
were  well  summarized  by  Sir  Walter  Scott 
when  he  calls  him  a  pleasant  man.  A  pleasant 
man  in  society  is  always  an  appreciative 
listener,  which  implies  good  nature  and  a 
quick  brain,  with  a  corresponding  ability  to 
say  the  right  thing  at  the  right  time.  Without 
these  qualities  Stowell  would  not  have  been 
Johnson's  intimate  friend  or  his  companion, 
for  instance,  on  the  visit  to  Edinburgh  in  1773. 
It  was  on  this  visit — which  was  the  prelude  of 
Johnson's  never-to-be-forgotten  journey  to  the 
Western  Highlands  and  Skye — that  Boswell 
first  became  acquainted  with  Scott.  Johnson 
arrived  on  August  14,  and  Scott  returned  to 
the  South  when  the  visit  to  Edinburgh  con- 
cluded on  the  18th.  Boswell  was  too  en- 
grossed in  Johnson  to  record  his  impressions 
of  the  Oxford  tutor,  and  he  only  tells  us,  in 
a  cursory  way,  that  "  Mr.  Scott's  amiable 
manners  and  attachment  to  our  Socrates  at 
once  united  me  to  him."  Yet  these  few  words 


THE  JOHNSON  CIRCLE  11 

are  valuable,  for  they  convey  a  sense  of  Scott's 
personal  affection  for  Johnson,  evidenced  by 
pleasant  outward  attentions.  It  is  in  fact 
one  of  the  rare  occasions  when  we  obtain  a 
glimpse — but  a  glimpse  only — of  the  person- 
ality of  Scott. 

We  again  meet  Johnson,  Boswell  and 
Scott  in  April  1778.  One  evening  they  dined 
together  at  Scott's  chambers  in  the  Temple. 
The  sage  was  not  in  good  spirits  and  for  some 
time  the  conversation  flagged ;  but  presently 
Johnson  began  to  give  his  opinions  on  sub- 
ordination, then  on  fame,  on  wealth  and  on 
war,  and  at  last  on  the  perennial  subject  of 
the  Cock  Lane  ghost,  but  throughout  the 
evening,  at  least  in  Boswell's  chronicle,  Scott 
had  little  to  say,  and  the  main  impression 
which  is  left  by  these  pages  is  of  the  pleasant 
and  friendly  intimacy  of  the  gathering.  We 
seem  to  realize  Boswell  and  Scott  quietly 
listening  to  Johnson,  stimulating  him  by 
occasional  remarks  to  continue  his  rich  stream 
of  talk.  The  last  time  we  meet  them  is  on 
Easter  Sunday  of  1781.  After  service  at  St. 
Paul's  Cathedral,  Boswell  called  on  Johnson ; 
presently  Dr.  Scott  joined  them  and  then 
followed  some  familiar  and  serious  talk. 
"  Lectures,"  said  Johnson,  talking  of  educa- 
tion, "  were  once  useful ;  but  now,  when  all 
can  read  and  books  are  so  numerous,  lectures 


12  LORD  STOWELL 

are  unnecessary;  if  your  attention  fails,  and 
you  miss  a  part  of  the  lecture,  it  is  lost,  you 
cannot  go  back  as  you  do  upon  a  book." 
Dr.  Scott  agreed  with  him.  Then  Boswell 
evidently  thought  that  Scott  had  given  him 
an  opening  for  his  wit,  and  he  continues,  well 
pleased  with  himself,  "  but  yet,"  said  I, 
"  Dr.  Scott  you  yourself  gave  lectures  at 
Oxford."  He  smiled.  The  sequel  is  in 
BoswelPs  best  style.  "  You  laughed  then," 
said  I,  "  at  those  who  came  to  you."  Scott 
was  too  urbane  to  do  more  than  smile  at 
BoswelPs  blundering  remarks,  and  he  probably 
smiled  again,  elusively. 

After  Stow  ell  reached  the  Bench  he  had 
time  to  enjoy  social  pleasures,  but  when  an 
advocate  his  professional  occupations,  which 
engrossed  his  days  and  often  long  parts  of 
the  night,  prevented  him,  though  sociable 
in  temperament,  from  mixing  much  in 
general  society,  and  the  tone  of  the  John- 
sonian circle  best  suited  his  easy  pleasant 
character  and  his  intellectual  gifts.  In  that 
circle  he  was  essentially  a  comrade.  "  Poor 
Reynolds'  death,"  he  wrote  to  Warton  on 
April  2,  1792,  "  occasions  a  terrible  void  among 
us,  we  have  had  no  society  worth  naming 
since  his  death."  Here  we  see  at  once  an 
appreciation  of  that  group  which  comprised 
the  first  men  of  letters  and  of  art  of  the  later 


THE  JOHNSON  CIRCLE  13 

years  of  the  eighteenth  century,  an  apprecia- 
tion at  once  personal  and  intellectual.  On 
the  day  of  Johnson's  funeral  we  have  a  glimpse 
of  Scott  dining  with  Reynolds,  Dr.  Burney 
and  others  who  valued  the  friend  they  had 
lost,  a  party  which  marks  and  emphasizes  the 
place  of  Stowell  in  the  literary  life  of  the 
London  of  his  time.  It  is  as  one  of  the 
Johnson  circle,  and  only  as  one  of  that  remark- 
able group,  that  Stowell  will,  from  the  point 
of  view  of  the  history  of  English  society, 
continue  to  be  remembered. 

Yet  looking  back  to  that  agreeable  company 
we  note  a  difference  between  "  Dr.  Scott  " — 
as  he  was  called  in  the  Club — and  his  literary 
friends  and  associates.  We  never  know  him  as 
we  know,  for  example,  Johnson,  and  Reynolds, 
and  Dr.  Burney  and  Burke,  with  whom  we 
have  long  been  friends,  and  who  are  endeared 
to  us  not  less  by  their  faults  than  by  their 
gifts.  We  may  have  a  sincere  admiration  for 
Scott's  striking  abilities,  but  he  never  was 
and  never  will  be  a  friend.  He  never  gives 
us  his  confidence,  nor  are  there  revealed  to  us 
in  him  the  many  human  qualities  which  are 
among  the  chief  attractions  of  the  eminent 
men  with  whom  he  so  intimately  associated. 
This  is  partly  his  misfortune,  for  materials  for  a 
kindlier  remembrance  of  him  do  not  exist, 
and,  instinctively  almost,  we  portray  him 


14  LORD  STOWELL 

from  his  judgments.  Yet  his  fellowship  with 
so  many  warm-hearted  and  gifted  persons 
proves  that  he  had  fine  qualities  of  the  heart 
as  well  as  of  the  head. 

StowelPs  friends,  however,  had  more  sub- 
stantial grounds  for  their  appreciation  of  him 
than  his  pleasant  companionship  ;  he  was  a 
sound  adviser  and  he  was  always  ready  to 
place  his  time  and  his  capacity  at  their  dis- 
posal. He  thus  obtained  and  held  their 
confidence.  It  was  for  this  reason,  one  cannot 
doubt,  that  Johnson  appointed  him,  with 
Reynolds  and  Sir  John  Hawkins,  one  of  his 
executors,  bequeathing  to  him  with  a  right 
appreciation  of  the  tastes  of  his  learned  friend, 
his  Dictionnaire  de  Commerce  and  Lectius' 
edition  of  the  Greek  poets.  This  confidential 
position,  after  the  death  of  Reynolds  and 
Hawkins,  involved  Scott  in  a  troublesome  corre- 
spondence with  Dr.  Parr,  who  had  been  com- 
missioned by  Reynolds,  on  behalf  of  the 
executors,  to  write  a  Latin  epitaph  on  Johnson. 
The  self-willed  divine  refused  to  submit  his 
composition  for  approval  and  grew  wrathful 
at  the  request ;  Stowell,  after  some  conciliatory 
letters,  left  the  matter  to  be  settled  by  Malone, 
who  too  was  a  friend  of  Johnson  and  a  member 
of  the  Literary  Club.  This  was  the  character- 
istic letter  under  cover  of  which  Stowell 
retreated  from  the  discussion  : 


THE  JOHNSON  CIRCLE  15 

April  30,  1795. 

MY  DEAR  SIR — Don't  think  me  guilty  either  of 
affectation  or  of  disrespect  to  you,  when  I  tell  you, 
that  the  term  being  come  in,  attended  with  an  un- 
common load  of  business,  both  professional  and 
official,  I  really  am  not  able  to  reply  to  your  obliging 
letters  otherwise  than  by  thanking  you  for  them,  and 
by  saying  that  I  have  transferred  to  our  common 
friend,  Mr.  Malone,  the  pleasure  of  answering  them 
according  to  his  own  judgment ;  in  which,  having 
entire  confidence,  I  shall  be  thoroughly  disposed  to 
concur.  You  will,  I  am  sure,  thank  me  for  the  choice 
of  correspondent ;  and  I  beg  you  to  believe  me,  with 
real  respect,  your  very  humble  servant, 

W.  SCOTT. 

To-day  the  pedantic  epitaph  and  Bacon's 
classical  statue  of  Johnson,  each  singularly 
inappropriate,  can  be  seen  by  any  one  who 
visits  St.  Paul's  Cathedral,  and  a  perusal  of 
Dr.  Parr's  eulogium  may  recall  to  some  of 
us  the  friendship  of  Johnson  and  Stowell. 


CHAPTER   II 

BIOGRAPHICAL 
1780-1836 

ADVOCATE — JUDGE 

WE  now  see  Scott  starting  on  a  professional 
career  as  an  advocate  in  Doctors'  Commons. 

This  legal  nest  of  civilians  was  a  quiet 
spot  under  the  shadow  of  St.  Paul's,  on  the 
southern  side  of  the  Cathedral,  with  an  entrance 
from  Knightrider  Street.  There  were  gathered 
the  advocates — a  group  of  some  twenty-five, 
Doctors  of  Law,  who  had  in  early  times  been 
formed  into  a  "  Society,"  and  were,  in  1768, 
incorporated  by  Royal  Charter  under  the 
title  of  the  College  of  Doctors  of  Law  exercent 
in  the  Ecclesiastical  and  Admiralty  Courts. 
Here  were  their  business  Chambers,  but  some- 
times an  advocate  would  occupy  an  entire 
house  with  his  family,  as  did  Lord  Stowell. 
Here  too  were  the  offices  of  the  proctors — 
also  limited  in  number — or,  as  they  would  now 
be  called,  solicitors,  though  they  were  not 

16 


ADVOCATE— JUDGE  17 

admitted  to  general  practice.  The  pleasant 
group  of  brick  buildings,  with  stone  quoins 
and  dressings,  dated  from  1762.  Erected  on 
the  site  of  Mount  joy  House,  under  a  perpetual 
lease  granted  in  1570,1  the  first  buildings  were 
burnt  down  in  the  Great  Fire,  and  for  a  time 
the  Doctors  made  Exeter  House  their  home 
until  their  new  habitation  arose.  Doctors' 
Commons  had  a  collegiate  appearance  with 
its  two  quadrangles  :  in  one  was  the  Library,2 
and  hard  by  was  the  Hall  which  served  as  the 
Court-house,  not  only  for  the  Admiralty  Court 
exercising  its  Instance  or  civil  jurisdiction, 
but  in  addition,  in  time  of  war,  its  prize  juris- 
diction. Within  it  were  held  also  the  Con- 
sistory Court  of  the  Diocese  of  London,  and 
the  Courts  of  the  Province  of  Canterbury,  in 
which  the  Doctors  of  Law  and  the  Proctors 
were  practitioners.  Few  men  can  now  be 
living  who  were  familiar  with  this  interesting 
portion  of  vanished  London.  But,  from  the 
description  of  one  who  knew  it  well  in  the 
days  of  Dr.  Lushington,  an  accurate  picture 
of  the  interior  of  the  Hall,  when  Stowell  held 
his  Court  within  its  walls,  can  be  obtained. 

The   Judge   occupied   an   elevated    seat  at 
the  upper  end  of  a  room  panelled  with  oak; 

1  See  Appendix  IV. 

2  The  books,  MSS.  and  portraits  from  the  Library  were  sold  in 
April  1861,  the  buildings  on  November  25,  1862 ;  the  College  being 
dissolved  under  the  Probate  Act,  1857. 

C 


18  LORD  STOWELL 

on  the  walls  hung  the  coats  of  arms  of  the 
advocates.  Below  the  Judge  was  placed  the 
Mace  or  Silver  Oar,  and  on  either  side  were 
seats  for  the  advocates,  each  having  his  allotted 
place ;  beneath  sat  the  proctors  at  a  long 
table  which  extended  at  right  angles  from 
the  Bench.  At  the  lower  end  of  it  was  a  seat 
for  the  Registrar,  or  his  deputy,  behind  whom 
a  few  spectators  were  sometimes  to  be  seen.  A 
touch  of  colour  was  added  when  the  King's  Advo- 
cate and  the  Admiralty  Advocate  were  in  Court 
in  the  scarlet  robes  worn  by  Doctors  of  Law. 

Doctors'  Commons  was  a  close  borough  in 
which  much  important  business  was  decorously 
transacted,  and  which,  as  readers  of  Horace 
Walpole's  Letters  know,  was  the  last  scene  of 
many  of  the  fashionable  scandals  of  the  time. 
The  inclusion  in  it  of  the  Admiralty  and  Prize 
Courts  seems  at  first  sight  singular.  To  under- 
stand it  we  must  carry  our  minds  to  the  four- 
teenth century,  to  an  age  when  there  were  no 
commissioned  warships,  and  when  owners  of 
private  vessels  seized  the  property  of  belliger- 
ents and  neutrals  alike — whether  ships  or 
cargoes — with  equal  zest.  We  have  also  to 
picture  an  Admiral  of  the  Fleet  who,  from  his 
position,  became  an  arbiter  in  maritime  dis- 
putes. If  an  instance  were  needed  one  might 
note  the  fact  that  in  1357  the  King  of  Portugal 
complained  that  an  Englishman  had  removed 


ADVOCATE— JUDGE  19 

Portuguese  goods  from  a  French  ship  which 
had  previously  captured  them.  "  The  answer 
of  Edward  the  Third  is  that  our  Admiral  has 
judicially  and  rightly  determined  the  owner- 
ship of  the  goods  claimed  by  your  merchants." 
This  is  the  first  mention  that  has  been  found 
of  judicial  proceedings  before  the  Admiral ; 
it  marks  the  beginning  of  the  Court  of  Admiralty 
as  a  prize  tribunal.  For  two  centuries  after 
this  date  there  are  few  indications,  in  the 
records,  of  its  prize  jurisdiction,  cases  usually 
came  before  the  Council  or  the  Chancellor,  or 
Commissioners  ad  hoc.1  Formal  legal  proceed- 
ings for  prize  were,  therefore,  probably  very 
rare,  it  was  at  least  three  centuries  before] 
disputes  as  to  prize  were  generally  brought 
before  the  Lord  High  Admiral's  legal  deputy, 
and  it  was  not  until  the  eighteenth  century  that 
all  cases  of  prize  came  before  the  Court. 

But  once  the  legal  germ  existed  it  required 
only  opportunity  to  grow  into  more  ample 
size.  In  1498,  in  a  treaty  with  France,  it  is 
provided  that  all  prizes  shall  be  adjudicated 
on  by  the  Admiral.  This  is  one  instance  only 
of  a  more  general  recognition  of  the  Admiral 
as  a  judicial  personage;  but,  as  soon  as  this 
high  official  deputed  his  judicial  work  to  a  i 
lawyer,  a  regular  tribunal  was  in  time  evolved. 

1  "  Early  English  Prize  Jurisdiction,"  English  Historical  Review, 
vol.  xxiv.  p.  680. 


20  LORD  STOWELL 

I 

This  gradual  evolution  can  be  illustrated  by 
a  letter  of  Sir  Leoline  Jenkins  in  1666  to  the 
Lords   Commissioners  of  Prizes,   in  which  he 
tells  how  the  master  of  a  Riga  ship  had  been 
barbarously  treated  by  the  captors  in  order 
to  obtain  evidence  favourable  to  them.     He 
concludes  :    "  Thus  I  have  given  your  Lord- 
ships  an  Account  of  the  Pretensions  of  the 
one  Side  and  of  the  other,  as  minutely  as  I 
can ;    in  Regard  this  business  is  devolved  to 
your  Lordships  from  His  Majesty  in  Council. 
But   I   do    suppose   the   Privateer  will   insist 
upon  the  Title  he  has  to  a  legal  Trial,  which 
as  I  humbly  conceive,  cannot  be  denied  him."  l 
,This    letter    seems    to    point    to    an    informal 
investigation  in  the  first  place  by  the  Lords 
Commissioners  of  Prizes,  and,  if  this  was  not 
satisfactory  to  the  captors  and  the  claimants, 
]  then  to  a  formal  trial  before  the  Judge  of  the 
Admiralty  Court,  who  at  that  time  was  Jenkins 
himself.     As  for  the  judge,  he  was,  at  first, 
merely  a  substitute  for  the  higher  official,  as 
in  a  case  in  1389,  in  which  one  William  Toomer 
is  spoken  of  in  the  records  as  "  Substitute  and 
deputy."     But  so  soon  as  we  realize  that  the 
x.      deputy   of  the  Admiral   became  in  time  the 
judge  alike  for  prize  and  for  maritime  disputes, 
we  grasp  succinctly  the  history  of  the  Admiralty 
Court.     For  as  the  Prize  Court  was  also  the 

1  Life  of  Sir  Leoline  Jenkins,  by  William  Wynne,  vol.  ii.  p.  730. 


ADVOCATE— JUDGE  21 

Admiralty  Court,  and  the  prize  jurisdiction 
one  which  was  only  in  being  in  time  of  war, 
the  history  of  the  Prize  Court  and  of  its  judges 
is  necessarily  the  same  as  that  of  the  Admiralty 
Court  at  certain  times  in  our  history.1  But 
there  was  this  fundamental  difference  between 
the  jurisdiction  of  the  judge  in  regard  to 
Admiralty  and  to  prize  matters.  He  could 
only  exercise  this  latter  jurisdiction  after  an 
appointment  by  the  Crown — "  the  captors' 
right  to  prize  money  being  derived  from  the 
Crown,  the  Crown  decided  what  was  and 
what  was  not  good  prize."  Orders  or  com- 
missions to  try  cases  of  prize  were,  therefore, 
constantly  issued,  and  in  time  a  practice  was 
established  by  which,  at  the  commencement 
of  a  war,  the  Crown  issued  a  Commission 
which  required  the  Judge  of  the  High  Court 
of  Admiralty  "  to  proceed  upon  all  and  all 
manner  of  captures,  seizures,  prizes,  and 
reprisals  of  all  ships  or  goods  which  are  or 
shall  be  taken,  and  to  hear  and  determine 
according  to  the  course  of  Admiralty  and  the 
law  of  nations."  Because  it  was  by  the  law 
of  nations  that  the  Prize  Court  was  guided, 
and  because  the  Admiralty  Court  was  guided, 

1  See  further  on  this  subject  Marsden's  "Early  Prize  Jurisdiction 
and  Prize  Law  in  England,"  English  Historical  Review,  vol.  xxiv. 
p.  675,  vol.  xxv.  p.  243.  See  also  Select  Pleas  in  the  Court  of 
Admiralty,  2  vols.,  edited  for  the  Selden  Society  by  Reginald  G. 
Marsden.  Law  and  Custom  of  the  Sea,  by  Reginald  G.  Marsden. 
Publications  of  the  Navy  Records  Society,  vol.  xlix. 


22  LORD  STOWELL 

in  its  earlier  days,  by  ancient  maritime  customs 
and  ancient  maritime  codes,  and  not  by  the 
common  law  of  England,  the  High  Court 
of  Admiralty  was  never  one  of  the  ordinary 
municipal  tribunals,  one  of  the  King's  Courts 
at  Westminster,  administering  the  common 
law  of  England.  The  practitioners  in  it  were 
therefore  civil  lawyers,  and  from  among  them 
the  deputy  of  the  Lord  High  Admiral  was 
selected.  At  first  without  a  fixed  abode,  the 
Court  in  time  became  more  and  more  localized : 
at  one  time  in  the  old  church  of  St.  Margaret, 
Southwark,  and  then,  about  1675,  it  was 
finally  established  among  the  civilians  at 
Doctors'  Commons,  after  they  had  secured 
permanent  quarters  in  the  City  of  London. 

StowelPs  reputation  at  Oxford  had  preceded 
him  to  Doctors'  Commons,  and  he  sprang  at 
once  into  a  considerable  practice.  This  rapid 
rise  could  hardly  have  occurred — even  in  a  small 
professional  circle — to  a  man  who  was  without 
the  personal  and  intellectual  influence  which 
this  eminent  civilian  had  already  attained.  It 
was  but  two  years  after  Scott  first  appeared 
i  in  Court  that  he  was  appointed  Advocate- 
General  to  the  Admiralty,  an  office  which 
gave  him  the  right  to  appear  professionally 
for  the  Admiralty  in  suits  to  which  it  was  a 
party.  In  the  following  year  (1783)  John 
Scott,  his  brother,  wrote  of  him,  "  His  success 


ADVOCATE— JUDGE  23 

is  wonderful  and  he  has  been  fortunate  beyond 
example."  This  short  space  of  three  years, 
at  the  beginning  of  Scott's  professional  life, 
is  an  epitome  of  his  entire  career  as  an  advocate ; 
he  was  in  constant  practice,  he  was  paid  large 
fees,  and,  in  his  quaint  fashion,  he  used  to 
carry  to  his  bedroom  at  night  for  safe  custody 
those  fees  which  he  had  received  during  the 
day.  Lucrative  offices,  open  only  to  civilians, 
were  bestowed  on  him,  which  are  stated  in 
detail  at  the  beginning  of  this  volume.  It 
was,  therefore,  almost  a  matter  of  course  that 
he  should  become  the  successor  of  Sir  James 
Marriott,  in  1798,  as  Judge  of  the  High  Court 
of  Admiralty,  and,  as  Great  Britain  was  then 
at  war,  Judge  also,  by  virtue  of  his  office,  of 
the  British  Prize  Court. 

The  domestic  atmosphere  of  the  Court  in 
which  Sir  William  Scott  practised  was  not 
one  which  stimulated  advocacy  to  a  high 
pitch  of  eloquence  or  passion.  What  little 
evidence  there  is  on  the  subject  makes  one 
believe  that  StowelPs  manner  was  conversa- 
tional, his  matter  substantial,  and  that  towards 
the  end  of  his  career  at  the  Bar  he  was  some- 
times rather  overbearing.  The  manner  of 
Doctors'  Commons  has  perhaps  become  tradi- 
tional, for  one  seems  to  recognize  in  Stowell 
the  same  characteristics  as  have  since  been 
noted  in  the  Courts  which  are  the  successors 


24  LORD  STOWELL 

of  that  in  which  Stowell  practised.  He  was 
clearly  more  suited  by  temperament  to  a 
seat  on  the  Bench.  He  had  what  is  called  a 
good  presence,  a  fine  face,  and  a  dignity  of 
manner  as  he  presided  over  his  Court  which 
were  lost  when  he  left  it ;  for  his  short  and 
rather  stout  figure  was  ungainly,  and  we  are 
told  by  a  practitioner  in  his  Court  that  he  had 
a  waddling  walk  like  a  duck.1  Nor  was  he 
particular  in  his  dress.  One  likes,  therefore, 
to  think  of  him  as  the  judge  rather  than  in 
any  other  sphere  of  activity.  Sometimes  in 
his  speech  even  on  the  Bench  he  recalled  his 
northern  origin  by  his  occasional  provincial 
accent,  and  turned  his  "  e's "  into  "  a's." 
"The  marchant  in  this  case,"  he  would  say; 
and  he  once  observed  to  a  practitioner,  whose 
methods  he  did  not  like,  that  "  We  want  none 
of  your  Jarsey  tricks  in  this  Court."  He  had 
a  kindly  feeling  for  those  who  practised  before 
him,  and  from  time  to  time  entertained  a 
party  of  members  of  his  Bar  to  dinner;  and 
then,  seated  at  the  head  of  his  table,  pleased 
his  guests  by  his  admirable  conversation,  of 
which,  however,  the  younger  members  of  the 
party  who  were  at  the  lower  end  heard  only 
precious  scraps  and  fragments. 

Two    episodes    in    StowelPs    personal    life 

1  "  Anecdotes  of  Lord  Stowell,"  Gentleman's  Magazine,  vol.  xxvi. 
part  ii.  p.  367. 


ADVOCATE— JUDGE  25 

deserve  brief  mention — his  first  and  second 
marriages.  The  first  was  in  1781,  when  he  mar- 
ried a  lady  who  was  co-heiress  of  John  Bagnall, 
Esquire,  of  Erleigh  Court,  Berkshire.  She  is 
now  for  us  a  name  only,  but  it  was  in  all  respects 
a  fortunate  alliance  for  Stowell :  in  her  right 
he  became  the  owner  of  the  pleasant  estate  of 
Erleigh  Court,  near  Reading,  with  a  moderate- 
sized  house,  within  easy  reach  of  London,  and 
which  henceforth  became  his  country  home. 

However,  in  his  second  marriage  Stowell 
made  the  one  mistake  of  his  life,  and  this 
demands  a  few  lines  of  notice.  On  December 
16,  1812,  the  Marquis  of  Sligo,  a  young  man 
of  twenty-two,  was  indicted  at  the  Admiralty 
Sessions  at  the  Old  Bailey  for  seducing  two 
seamen  in  time  of  war  from  a  king's  ship  to 
enter  his  service  on  a  brig,  with  which  he  was 
about  to  cruise  on  the  coast  of  Greece.  He 
pleaded  guilty,  and  Stowell  in  his  dignified 
way  passed  sentence,  fining  Lord  Sligo  £5000 
and  ordering  him  to  be  imprisoned  in  Newgate 
for  four  months.  After  this  trial,  through 
the  intervention  of  an  aunt  of  the  boy's 
mother,  the  Marchioness  of  Sligo,  and  a  friend  of 
StowelPs,  he  became  acquainted  with  this  lady. 
Within  four  months  they  were  married.  The 
event  caused  no  little  amusement  in  London 
society,  and  was  unfortunate  for  each  of  the 
parties.  The  wife  was  generous,  the  husband 


26  LORD  STOWELL 

parsimonious;  the  wife  liked  her  evenings  at 
home,  the  husband  preferred  the  society  of 
the  Club  and  of  his  legal  friends.  Of  their 
short  married  life  we  know  little,  but  it  is 
certain  that  the  marriage  was  not  agreeable  in 
its  outcome,  and  Stowell  and  his  wife  became 
estranged.  Lady  Sligo  died  during  a  visit 
to  Paris  and  Amsterdam  while  Stowell  was 
making  a  tour  in  Switzerland. 

One  almost  forgets  that  for  thirty-one  years 
Stowell  was  a  member  of  the  House  of 
Commons,  for  in  those  days  the  Judge  of 
the  High  Court  of  Admiralty  was  not  ineligible 
for  a  seat  in  Parliament.  It  is  sufficient  to 
say  that  he  was  a  strong  Tory  in  politics,  and 
a  close  attendant  at  Westminster,  and  that  he 
never  intervened  in  debate  except  on  some  one 
of  the  rather  technical  subjects  of  which  he  was 
a  master  or  in  which  he  was  officially  interested. 
He  was  created  a  peer  on  the  Coronation  of 
George  IV.,  taking  his  now  historic  title  from 
an  estate  which  he  had  purchased  in  Gloucester- 
shire, and  which — by  the  way — turned  out  an 
unprofitable  investment.  But  it  gave  him  a 
name  which  has  become  historical. 

Stowell  outlived  most  of  his  contemporaries 
and  consequently  became  the  oldest  member 
of  the  immortal  Club,  but  after  he  retired  in 
1828  from  the  Bench  of  the  High  Court  of 
Admiralty,  with  which  he  is  permanently 


ADVOCATE— JUDGE  27 

associated,  he  lived  for  the  most  part  quite 
quietly  at  Erleigh  Court,  his  fine  intellect 
much  impaired  by  age.  His  daughter,  the 
wife  of  Henry  Addington,  afterwards  Lord 
Sidmouth,  was  his  favourite  companion.  She 
had  many  of  her  father's  gifts,  and  Mary 
Russell  Mitford  has  left  a  very  pleasing  sketch 
of  her.  "  I  have,"  she  wrote  soon  after  Lady 
Sidmouth's  death,  "seldom  known  any  one 
more  thoroughly  awake  and  alive  to  all  that 
was  best  worth  knowing.  She  had  an  en- 
lightened curiosity,  a  love  of  natural  history, 
of  antiquities,  of  literature,  of  art ;  was  herself 
full  of  talent,  intelligence  and  gaiety,  and  had 
a  quick  and  peculiar  humour."  S  to  well  re- 
mained also  on  terms  of  affectionate  confidence 
with  his  brother,  Lord  Eldon,  by  whom  he  was 
often  visited.  It  was  in  his  pleasant  country 
home  that  Stowell  died  on  February  28,  1836, 
many  years  after  his  memorable  judicial  work 
had  been  completed.  Learned  and  hard-headed, 
prosperous  and  pleasant,  his  life  was,  apart 
from  his  transcendent  achievements  as  a  judge, 
undistinguished.  Personal  details,  which  once 
may  have  been  of  interest,  and  which  excited  the 
curiosity  of  his  contemporaries,  have  now  been 
reduced  to  their  proper  proportions,  so  that  in 
the  historical  perspective  Stowell  has  become 
almost  an  impersonal  figure,  so  closely  is  his 
individuality  merged  in  his  monumental  work. 


CHAPTER  III 

THE   PRIZE    COURT   AND   PRIZE   LAW 

WHEN  an  eminent  man  has  been  in  his  grave 
for  eighty  years,  posterity  in  that  space  of 
time  has  generally  assessed  his  career  and 
his  work  at  their  true  value.  History  is 
strewn  with  examples  of  the  inaccuracy  of 
contemporary  estimates ;  and  the  opinion 
formed  of  Stowell  by  the  men  of  his  own 
generation  is  yet  another  instance  of  this 
statement,  for  if  one  had  asked  one  of  his 
contemporaries  upon  what  his  reputation 
rested,  the  answer  certainly  would  have  been 
that  it  was  due  to  his  learning  and  experience 
as  an  ecclesiastical  lawyer.  Posterity  has 
finally  and  decidedly  formed  a  different  estimate 
of  StowelPs  historical  position.  As  an  ecclesi- 
astical lawyer  he  was  the  adviser  of  officials 
and  of  private  persons,  as  such  he  held  several 
important  ecclesiastical  judgeships,  and  in  his 
judicial  capacity  pronounced  some  interesting 
and  valuable  judgments.  In  a  legal  text- 
book these  decisions  must  necessarily  be 


PRIZE  COURT  AND  PRIZE  LAW     29 

enumerated,  but  as  we  approach  the  end  of 
a  century  from  StowelPs  birth,  to  us  who 
stand  at  a  long  distance  from  the  period  of 
his  professional  and  judicial  activities,  these 
judgments  are  no  more  than  personal  incidents 
in  his  judicial  life,  evidence  of  his  capacity 
in  one  of  his  several  spheres  of  work.  Some 
of  these  decisions  have,  it  is  true,  become,  in 
lawyer's  language,  "  leading  cases  "  in  matri- 
monial and  probate  law;  but  in  spite  of  this 
fact,  for  us  they  are  dead,  and  their  in- 
dividuality is  merged  in  a  mass  of  subsequent 
decisions  and  of  statute  law. 

In  some  degree,  but  to  a  lesser  extent, 
oblivion  has  clouded  the  individuality  of 
StowelPs  purely  Admiralty  decisions,  or,  as 
they  should  strictly  be  termed,  decisions  on 
the  Instance  side  of  the  High  Court  of 
Admiralty.  The  qualities  and  the  character- 
istics of  Stowell  as  a  judge  in  the  Prize  Court, 
and  the  unique  circumstances  which  occurred 
at  the  time  he  held  that  office,  which  make 
his  tenure  of  it  permanently  remarkable,  were 
present  in  some  degree  in  relation  to  his 
Admiralty  judgments,  and  of  these  an  impres- 
sion is  given  in  a  later  chapter.  But  whereas 
the  Prize  Court  acts  only  in  time  of  war,  the 
Admiralty  Court  sits  year  in  and  year  out, 
and  in  the  long  period  since  Stowell  resigned 
his  office  a  large  number  of  decisions  of  his 


30  LORD  STOWELL 

successors,  of  the  Judicial  Committee  of  the 
Court  of  Appeal  and  of  the  House  of  Lords, 
have  completed  the  structure  of  which  some 
of  StowelPs  decisions  may  be  regarded  as 
corner-stones.  It  is  therefore  on  his  work 
as  Judge  of  the  Prize  Court  for  twenty-nine 
years,  and  on  that  work  alone,  that  the 
universal  fame  of  Stowell  with  posterity 
indubitably  rests. 

Before,  however,  we  turn  to  Stowell  and 
the  Prize  Court,  it  is  desirable  to  sketch  first 
of  all,  in  a  few  lines,  the  nature  of  the  juris- 
diction exercised  by  the  Prize  Court  in  the 
eighteenth  century.  The  first  fact  to  bear 
in  mind,  as  Stowell  himself  pointed  out,  is 
that  "  all  rights  of  prize  belong  originally  to 
the  Crown,  and  the  beneficial  interest  derived 
by  othejrs  can  proceed  only  from  the  grant  of 
the  Crown."  It  was  under  this  grant  to 
ships  of  war,  and,  in  the  eighteenth  century, 
to  privateers,  evidenced  by  the  issue  of  a 
proclamation  at  the  commencement  of  every 
war,  that  vessels  forming  units  of  the  Royal 
Navy,  and  privateers  to  which  letters  of 
marque  had  been  issued,  were  entitled  to 
those  ships  and  cargoes  which  they  captured 
during  war  and  which  the  judge  of  the  Court 
condemned  as  lawful  prize.  Another  large 
class  of  prizes  was  known  as  Droits  of 
Admiralty.  This  arose  out  of  ancient  grants 


PRIZE  COURT  AND  PRIZE  LAW     31 

by  which  the  Crown  ceded  a  portion  of  its 
rights  to  the  Lord  High  Admiral ;  they  were, 
once  for  all,  expressly  defined  by  an  Order  in 
Council  of  March  6,  1665-66 ;  and,  briefly 
stated,  comprehended  "  all  prizes  captured 
during  hostilities  either  in  port  or  by  non- 
commissioned vessels,  or  persons."  l  A  third 
class — Droits  of  the  Crown — should  also  not 
be  left  out  of  notice,  comprising  captures 
effected  by  a  conjoint  force  of  the  Army  and 
Navy — as  on  the  seizure  of  an  enemy's  colony 
or  possession — and  captures  made  before  the 
commencement  of  hostilities.  For  an  embargo 
or  stop  was  often  placed  on  vessels  of  another 
Power  which  were  lying  in  port  before  a  declara- 
tion of  war,  and  if  hostilities  ensued,  these 
vessels  and  their  cargoes  were  proceeded 
against  in  the  Prize  Court  as  lawful  prize. 

The  distinction  between  Crown  Droits  and 
Droits  of  Admiralty  became  of  historical 
interest  only  after  1702,  when  Prince  George 
of  Denmark,  then  Lord  High  Admiral,  sur- 
rendered the  Droits  of  Admiralty  to  the  Crown. 
But  the  distinction  between  captures  under 
the  grant  of  the  Crown  and  captures  which, 
it  was  alleged,  were  Droits  of  Admiralty,  had, 
when  Stowell  was  Judge  of  the  Prize  Court,  a 
real  importance,  and  often  gave  rise  to  warm 
disputes  between  the  captors  and  the  Govern- 

1  Prize  Droits,  by  H.  C.  Rothery,  C.B.,  p.  13. 


32  LORD  STOWELL 

ment,  which  now  possessed  the  rights  of  the 
Lord  High  Admiral.  Some  of  StowelPs  most 
luminous  and  lengthy  judgments  were  delivered 
for  the  purpose  of  deciding  these  opposing 
claims. 

Another  important  branch  of  prize  juris- 
diction was  concerned  with  disputes  as  to 
Joint  Capture — differences  between  rival  ships 
of  war  as  to  whether  this  ship  or  that  — 
whether  one  of  the  Royal  Navy  or  a  privateer 
— was  entitled  to  a  share  in  a  prize.  These 
contests  between  admirals  and  captains,  sub- 
ordinate officers  and  the  crews,  gave  rise  to 
legal  disputes,  which  seem  inappropriate  to 
such  differences,  and  to  quite  a  series  of 
decisions  on  the  rules  which  should  guide  the 
Court  in  allowing  a  vessel  to  take  a  share  of 
the  booty  in  the  hands  of  the  Court.  Such 
picturesque,  if  perhaps  unedifying,  disputes 
no  longer  trouble  the  Prize  Court  to-day, 
since  the  captors  do  not  now  obtain  any 
individual  benefit  from  prizes  taken  at  sea.1 
There  were  yet  other  subjects  for  the  considera- 
tion of  the  Court,  such  as  prize  salvage — the 
reward  for  the  recapture  of  British  vessels 
previously  taken  by  the  enemy, — and  the 
various  claims  for  freight,  damages  and  other 
subsidiary  matters  arising  out  of  seizures  of 
ships  and  cargoes.  But  this  jurisdiction  was, 

1  Order  in  Council,  August  28,  1914. 


PRIZE  COURT  AND  PRIZE  LAW     33 

as  compared  with  that  of  the  ordinary  Civil 
Court,  obviously  small  and  limited,  and  was 
therefore  susceptible  of  receiving  and  retaining 
the  impress  of  a  single  and  a  powerful  legal 
mind. 

Before,  however,  one  can  properly  appre- 
ciate the  extraordinary  results  of  StowelPs 
tenure  of  the  judgment  seat  of  the  English 
Prize  Court,  one  has  also  to  realize  the  state 
of  the  law  by  which  the  Prize  Court  was 
guided  when  he  became  Judge  of  the  High 
Court  of  Admiralty  in  1798  and  when  he 
retired  in  1828.  English  prize  law  had,  unlike 
other  prize  laws,  been  administered  judicially 
from  the  thirteenth  century,  and  numbers  of 
judgments  of  the  High  Court  of  Admiralty 
were  preserved  among  its  records  as  well 
as  the  decisions  of  the  Lords  Commissioners 
of  Prize  Appeals.  But  these  judgments 
and  decisions  were  no  more  than  formal 
expressions  of  the  results  of  the  hearing  in 
the  first  instance  and  in  others  of  an  appeal, 
and  did  not,  except  in  a  few  rare  instances, 
contain  the  reasoning  on  which  a  decision 
was  based.  The  latest  of  these  documents 
differed  little  in  form  from  the  earliest,  and, 
as  they  were  not  usually  supported  by  recorded 
judicial  expressions,  they  were  useless  as  pre- 
cedents. A  few  isolated  cases,  it  is  true,  had 

been  chronicled,  as  for  example  by  Sir  William 

D 


34  LORD  STOWELL 

Burrell,  an  advocate  of  Doctors'  Commons, 
who  collected  a  number  of  decisions  in  the 
High  Court  of  Admiralty,  and  of  the  Lords 
Commissioners  of  Prize  Appeals  which  extended 
from  1758  to  1765,1  and  there  were  also  a 
few  decisions,  more  fully  reported,  of  Sir 
George  Hay  and  Sir  James  Marriott  from 
1776  to  1779.2 

In  the  note-books  and  in  the  memories  of 
the  advocates  of  Doctors'  Commons  precedents 
also  existed  which  were  utilized  both  by  the 
advocates  and  by  the  Judge,  but  they  were 
hardly  more  than  legal  traditions,  often  liable 
to  be  misunderstood,  for  they  could  not  be 
accurately  verified.  A  remarkable  instance 
of  this  vagueness  of  traditional  precedent  is 
the  case  of  the  "  Med  Guds  Hielpe,"  decided 
by  the  Lords  Commissioners  of  Prize  Appeals 
in  1778,  by  whiqh  it  was  settled  that  pitch 
and  tar  were  absolute  contraband.  This  was 
referred  to  by  Lord  Stowell  in  1798  as  "  the 
famous  case  of  Med  Guds  Hielpe."  "  The 
manuscript  notes  which  I  have  of  that  case," 
he  continues,  "  expressly  state  it  (the  cargo) 
to  have  been  condemned  on  the  ground  of 

1  Reports  of  cases  determined  in  the  High  Court  of  Admiralty  and 
upon  Appeal  therefrom,  Temp.  Sir  Thomas  Salusbury  and  Sir  George 
Hay,  Judges,  1758-1774,  by  Sir  William  Burrell,  Bart.     Edited  by 
Reginald  G.  Marsden,  Barrister-at-Law,  London,  1885. 

2  Decisions  in  the  High  Court  of  Admiralty  during  the  time  of  Sir 
George  Hay  and  of  Sir  James  Marriott,  late  Judges  of  that  Court, 
1776-1779. 


PRIZE  COURT  AND  PRIZE  LAW     35 

contraband."  1  But  it  was  not  till  1856,  when 
Dr.  Pratt  published  his  book  on  the  Law  of 
Contraband  of  War,  and  printed  in  it  some 
manuscript  notes  of  Sir  George  Lee,  an  eminent 
civilian  and  statesman,  which  were  stored  at 
Hartwell  in  Buckinghamshire,  among  others 
a  summary  of  the  arguments  and  judgment 
in  this  case,  that  any  published  report  of  it 
was  available  to  the  legal  profession,  and 
even  that  was  of  a  meagre  and  unilluminating 
nature.  Nothing,  in  fact,  in  the  nature  of  a 
series  of  judicial  precedents  having  the  validity 
of  a  legal  code  was  to  be  found — there  was  a 
chaotic  collection  of  law,  the  usefulness  of 
which  was  slight.  Perhaps  this  was  not 
surprising  when  the  small  number  of  lawyers 
who  were  permitted  to  practise  in  the  Prize 
Court  is  borne  in  mind.  The  great  body  of 
English  lawyers,  barristers  and  solicitors,  knew 
and  cared  nothing  about  prize  law.  It  was 
not  a  subject  which  interested  them  profes- 
sionally, and  therefore  there  was  no  reason 
why  they  should  study  it  academically,  for 
the  study  of  jurisprudence  as  a  science  has 
never  taken  root  in  England,  and  legal  study 
has  been  regarded  mainly  as  a  preliminary 
to  the  acquisition  of  money.  This  limitation 
of  the  practice  of  the  Prize  Court  to  a  few 
civilians,  which  continued  until  after  the 

1  The  Slaadt  Embden,  1.  C.  Robinson,  p.  26. 


36  LORD  STOWELL 

Crimean  War,  has  also  unquestionably  tended 
to  the  neglect  of  the  study  of  international 
law  in  more  recent  years,  and  when  the  present 
war  broke  out,  with  the  old  limitations  removed, 
the  Prize  Court  open  to  all  practitioners,  and 
the  site  of  Doctors'  Commons  covered  by 
commercial  buildings,  it  found  English  lawyers 
serenely  ignorant  of  the  groundwork  of  British 
prize  law. 

Returning  to  the  time  when  Stowell  became 
judge  of  the  Prize  Court,  the  reader  will  have 
realized  that  no  body  of  jurisprudence  by 
which  judges  and  advocates  could  be  guided, 
or  by  which  an  Administration  could  be 
assisted  in  dealing  with  foreign  Powers,  was 
to  be  found,  and  Great  Britain  was  therefore, 
from  a  scientific  point  of  view,  without  a 
prize  law.  Such  was  the  state  of  things  on 
the  appointment  of  Sir  William  Scott. 

The  absence  of  reported  decisions  not  only 
rendered  the  English  prize  law  uncertain,  it 
also  gave  greater  weight  to  the  contents  of 
the  various  treaties  by  which  certain  points 
of  prize  law  had  from  time  to  time  been  agreed 
upon  by  Great  Britain  and  European  Powers. 
Administrative  instructions  necessarily,  under 
such  circumstances,  possessed  a  higher  value 
than  they  deserved  as  expositions  of  prize 
law.  Thus  in  1664  an  Order  in  Council  was 
issued  which  contained  various  rules  and 


PRIZE  COURT  AND  PRIZE  LAW     37 

directions  to  be  observed  by  the  High  Court 
of  Admiralty  in  the  adjudication  of  prizes. 
The  second  of  these  stated  "  that  where  the 
ship  shall  belong  to  any  of  His  Majesty es 
friends,  allyes,  or  subjects,  or  any  of  them, 
and  shall  have  persons  or  goods  found  aboard 
her  belonging  to  any  of  the  states  of  the 
United  Provinces,  their  subjects  or  inhabitants, 
in  such  case  the  said  ship  and  the  said  goods 
shall  be  alike  condemned  as  good  and  lawful 
prize."  l 

This  rule  is  quite  opposed  to  the  law  as 
administered  in  the  British  Prize  Court  a 
century  later,  a  fact  which  shows  how  little 
regard  judges  may  have  for  law  as  expressed 
in  administrative  orders. 

The  absence  of  judicial  precedents  produced 
another  result.  It  necessarily  obliged  officials, 
who  from  time  to  time  had  to  defend  the 
national  action  in  regard  to  maritime  capture, 
to  refer  to  the  opinion  of  such  text-writers 
as  they  thought  would  justify  their  views. 
In  the  dispute — for  example — as  to  the 
Silesian  Loan,  in  1753,  Frederick  the  Great 
made  a  claim  for  compensation  for  damages 
and  loss  sustained  by  his  subjects  in  conse- 
quence of  the  seizure  and  detention  of  Prussian 
ships  by  Great  Britain.  The  Law  Officers  of 
the  Crown  in  their  Report  or  answer  relied 

1  Pratt  on  the  Law  of  Contraband,  p.  250. 


38  LORD  STOWELL 

on  the  authority  of  various  writers,  Grotius, 
Voet,  Heineccius  and  others,  on  the  Law  of 
Nations.1 

The  English  people  have  been  bred  on  legal 
precedents;  administrative  decrees  and  irrespon- 
sible academical  opinions  are  therefore  wholly 
alien  to  the  spirit  and  the  history  of  English 
jurisprudence.  Charles  Butler,  who,  in  his 
time,  was  extraordinarily  learned  in  English 
Common  and  Real  Property  law,  and  was 
also  a  skilful  conveyancer,  adverting  to  the 
small  attention  paid  to  the  study  of  the  Law 
of  Nations  in  England,  pertinently  observes 
in  his  Life  of  Grotius  :  "  Is  it  not  also,  because 
the  law  of  nature  and  nations,  with  all  its 
merits,  is  so  loose,  that  its  principles  seldom 
admit  of  that  practical  application  which 
renders  them  really  useful ;  and  which  an 
English  mind "  always  requires  ?  "  Stowell 
appreciated  the  nature  of  the  English  mind 
and  at  once  proceeded  to  place  the  prize  law 
of  Great  Britain  on  the  same  basis  as,  and  to 
assimilate  it  in  character  with,  the  law  which 
was  administered  in  the  municipal  courts  of 
England.  He  impressed  on  his  collection  of 
international  law  the  historical  and  national 
characteristics  of  English  law.  He  placed  it 
above  the  uncertainties  of  temporary  adminis- 
trative orders,  outside  mutual  international 

1  The  Silesian  Loan  and  Frederick  the  Great,  Satow,  p.  88. 


PRIZE  COURT  AND  PRIZE  LAW     39 

pacts;  he  removed  it  from  academical  discus- 
sion, he  demonstrated  to  the  world  that  the 
British  Prize  Court  was  a  completely  impartial 
judicial  tribunal,  with  a  well-defined  procedure, 
and  that  its  decisions  were  based  on  a  reasoned 
body  of  jurisprudence,  and  he  completed 
promptly  and  boldly,  with  infinite  wisdom  and 
sagacity,  the  long  evolution  of  British  prize 
law  which  had  begun  in  the  fourteenth  cen- 
tury. This  was  a  remarkable  and  a  memor- 
able achievement,  of  immense  present  and 
future  importance,  when  the  growth  of  the 
British  Empire  and  that  of  the  United  States  is 
borne  in  mind,  and,  fitly  enough,  it  was  syn- 
chronous with  the  victories  of  the  British  Navy, 
which  raised  the  maritime  power  of  Great 
Britain  to  a  supreme  position. 


CHAPTER  IV 

STOWELL'S  JUDICIAL  WORK  AND  ITS 
RESULTS 

WHEN  Scott  became  Judge  of  the  High  Court 
of  Admiralty,  with  its  two  distinct  jurisdictions, 
he  had  attained  a  peculiar  position  for  which 
he  was  especially  fitted,  at  a  time  fortunate 
for  his  country  and  himself;  as  Lord  Morley 
says  of  the  appearance  of  Voltaire,  "  in  the 
phraseology  of  pre-scientific  times  it  might 
well  have  been  called  providential."  His 
temperament  was  judicial.  He  was  a  masterly 
scholar  and  an  erudite  lawyer ;  he  was  hard- 
working and  shrewd,  clear-headed  and  broad- 
minded.  The  union  of  these  attainments  and 
qualities,  which  may  be  summarized  as  a  union 
of  learning  and  sagacity,  together  with  the  in- 
estimable gift  of  being  able  to  apply  his  powers 
aright,  produced  a  remarkable  result  —  judg- 
ments which  are  their  fruit  and  representation. 
At  the  moment  when  Stowell  became  a 
judge  England  was  involved  in  a  great 
European  struggle  and  in  a  long  maritime 

40 


STOWELL'S  JUDICIAL  WORK       41 

war — the  seas  swarmed  with  British  cruisers 
and  with  brave  and  energetic,  not  to  say 
rapacious,  privateers.  The  Prize  Court  was 
therefore  in  continuous  request.  Stowell  in- 
stinctively realized  his  opportunity,  and  set 
himself  to  fulfil  a  great  task  which  was 
admirably  achieved.  How  clearly  he  recog- 
nized his  position  is  to  some  extent  evi- 
denced by  some  words  in  a  judgment 
delivered  early  in  his  judicial  life  in  1799 — 
in  which  also  he  definitely  stated  certain  basic 
principles  in  regard  to  visit  and  search  of 
neutral  vessels  by  belligerent  ships  of  war. 
"  I  trust,"  he  says,  "  that  it  has  not  escaped 
my  anxious  recollection  for  one  moment,  what 
it  is  that  the  duty  of  my  station  calls  for  from 
me — namely,  to  consider  myself  as  stationed 
here,  not  to  deliver  occasional  and  shifting 
opinions  to  serve  present  purposes  of  particular 
national  interest,  but  to  administer  with  in- 
difference that  justice  which  the  Law  of  Nations 
holds  out,  without  distinction,  to  independent 
states,  some  happening  to  be  neutral  and  some 
to  be  belligerent."  1  Stowell  pursued  judicial 
ideals  and  he  perceived  that  he  was  placed 
in  a  position  in  which  they  could  be  realized 
and  in  which  he  could  permanently  create  a 
body  of  British  prize  law.  Many  capable  and 

1  The  Maria,  1.  C.  Robinson,  p.  340  ;   1.  English  Prize  Cases, 
p.  152. 


42  LORD  STOWELL 

honest  judges  would  have  been  satisfied  to 
deliver,  what  Stowell  called  in  the  judg- 
ment in  the  Maria,  occasional  and  shifting 
opinions.  There  is,  indeed,  a  great  tempta- 
tion to  a  judge  of  a  Prize  Court  to  look  rather 
to  present  and  transitory  circumstances  than 
to  general  principles.  It  has  been  said  that 
Stowell  leaned  towards  his  own  country — a 
belligerent  nation.  This  criticism  was  certain 
to  be  made  against  his  judgments,  because  in 
them  he  recognized  the  fundamental  basis  of 
maritime  capture  in  time  of  hostilities,  that 
it  is  in  principle  a  necessary  operation  of  war. 
For  this  reason  he  would  not  countenance 
any  suggestion  by  which  a  blockade  should 
be  weakened.  "What  is  the  object  of  a 
blockade  ?  "  he  asked.  He  answers  the 
question  by  the  words,  "  to  cut  off  all  com- 
munication of  commerce  with  the  blockaded 
place."  "  I  must,  therefore,"  he  continued, 
"  consider  the  act  of  legress  to  be  as  culpable 
as  the  act  of  ingress."  l 

There  are  and  always  will  be  two  schools 
in  regard  to  the  conflicting  interests  of  belli- 
gerents and  neutrals,  one  seeking  to  affirm  the 
powers  of  belligerents  and  the  other  to  safe- 
guard the  convenience  of  neutrals  in  time 
of  war.  Stowell,  whilst  he  recognized  the 

1  The   Frederick   Molke,    1.    C.   Robinson,   p.   86 ;     1.   English 
Prize  Cases,  p.  58. 


STOWELL'S  JUDICIAL  WORK        43 

supremacy  of  the  belligerent,  was  equally 
careful  of  the  cause  of  neutrals.  Thus  he 
definitely  decided  that  when  a  neutral  ship 
carries  a  contraband  cargo,  the  shipowner 
should  only  lose  his  freight  and  not  his  vessel, 
unless  it  was  proved  that  the  claimants  had 
acted  fraudulently.1  A  sound  basis  of  common 
sense  underlies  this  rule,  but  for  the  moment 
that  is  not  the  point.  The  purpose  of  reference 
to  the  question  in  this  place  is  to  show  Stowell's 
tenderness  to  neutrals,  when  it  was  possible 
to  unite  it  with  the  safeguarding  of  the  power 
of  a  belligerent.  Again,  he  decided  not  that, 
as  is  the  law  of  France,  the  purchase  of  a 
vessel  from  a  belligerent  by  a  neutral  in  time 
of  war  is  absolutely  invalid,  but  that  it  may 
be  invalidated ;  "  such  purchases  have  been 
allowed  to  be  legal  but  they  will  always  be 
open  to  much  suspicion." 2  At  any  rate, 
therefore,  the  neutral  was  not  deprived  of  his 
ship  without  a  judicial  examination. 

In  no  respect,  however,  was  Stowell  more 
lenient  to  neutrals  than  when  he  very  decisively 
ruled  that  under  no  circumstances  could  a 
neutral  vessel  be  destroyed  without  payment 
of  compensation.  It  is  the  primary  duty  of  a 
captor  to  bring  a  neutral  vessel  and  a  cargo 

1  The    Ringende    Jacob,    1.    C.    Robinson,    p.    89 ;    1.   English 
Prize  Cases,  p.  60. 

2  The  Bernon,  1.  C.  Robinson,  p.  102  ;  1.  English  Prize  Cases, 
p.  70. 


44  LORD  STOWELL 

which  is  seized  into  port  for  the  purpose  of 
obtaining  the  judgment  of  the  Prize  Court 
as  to  whether  it  is  or  is  not  lawful  prize. 
Stowell  admitted  no  qualification  or  modifica- 
tion of  the  rule.  It  might  be  impossible  by 
reason  of  the  impracticability  of  placing  a 
prize  crew  on  board  the  captured  vessel,  or 
from  some  other  maritime  cause,  to  navigate 
a  captured  neutral  vessel  into  port,  but  under 
such  conditions  the  choice  lay  between  release 
and  destruction  with  payment  of  compensa- 
tion. "  Where  it  (the  vessel  or  other  property) 
is  neutral,  the  act  of  destruction  cannot  be 
justified  to  the  neutral  owner,  by  the  gravest 
importance  of  such  an  act  to  the  public  service 
of  the  captor's  own  state ;  to  the  neutral  it 
can  only  be  justified,  under  any  such  circum- 
stances, by  a  full  restitution  in  value." 1 
Stowell  thus  safeguarded  neutrals  without 
embarrassing  belligerents  from  a  military  point 
of  view.  This  ruling  was  not  only  just,  but 
was  also  for  a  belligerent  diplomatically  sound, 
since,  speaking  broadly,  a  neutral  could  not 
well  complain,  if  the  act  of  destruction  did 
not  injure  him  financially. 

It  is  outside  the  scope  of  this  book  to  discuss 
problems  of  international  law  in  their  bearing 
on  future  relations  between  belligerent  and 
neutrals.  But  it  certainly  seems  that  StowelPs 

1  The  Felicity,  2.  Dodson,  381  ;  2.  English  Prize  Cases,  233. 


STOWELL'S  JUDICIAL  WORK        45 

judicial  decisions  on  the  point  should  become 
of  general  application,  though  it  must  be 
admitted  that  the  weakness  of  some  neutrals 
will  apparently  lessen  the  value  of  such  a 
rule  unless  there  is  sufficient  union  among 
neutral  nations  in  time  of  war  to  safeguard  a 
few  general  regulations  at  least.  The  con- 
tinuous destruction  of  neutral  vessels  by 
Germany,  and  the  refusal  of  the  German  Prize 
Court  to  order  the  payment  of  compensation, 
have  shown  that  only  combined  action  by 
neutrals  can  have  any  practical  value,  and  of 
this  there  has — in  the  present  war — been  a 
complete  absence. 

The  individuality  of  StowelPs  work  pro- 
duces an  almost  indefinite  but  certainly  exist- 
ing tendency  to  regard  him  as  an  original 
creator,  whereas,  in  fact,  it  was  his  admirable 
art  to  adapt  the  opinions  of  publicists  and 
theorists  to  the  facts  which  were  brought 
before  him.  He  seldom  cited  a  writer  on 
international  law,  but  he  had  recognized 
treatises  in  his  mind  and  he  applied  doctrines 
boldly  and  on  his  own  responsibility,  so  as  to 
produce  a  series  of  decisions  on  which  his  own 
individuality  was  stamped. 

The  value  of  this  body  of  law,  at  once  clear, 
definite  and  flexible,  can  be  better  appreciated 
by  those  who  are  not  lawyers  if  it  be  compared 
with  the  present  state  of  prize  law  in  France, 


46  LORD  STOWELL 

by  which  the  Conseil  des  Prises  is  now  guided, 
which  is  thus  described  by  a  French  writer  : 

Les  juridictions  administratives,  a  defaut  de 
codes,  se  fondent  du  moms  sur  des  lois.  Le  Conseil 
des  Prises,  lui,  n'a  cette  ressource  qu'exceptionnelle- 
ment.  En  effet,  le  legislateur  n'est  presque  jamais 
intervenu  en  notre  matiere.  Ce  ne  sont  done  guere 
que  des  decrets  qui  Font  reglementee.  Us  sont  nom- 
breux,  mais  assez  peu  coherents,  ayant  ete  faits 
a  des  dates  tres  eloignees,  sous  des  regimes  fort 
differens,  en  raison  de  besoins  varies  et  parfois 
contraires.  Les  plus  re"cens  n'ont  pas  tou jours 
abroge*  les  plus  anciens,  mais  souvent  1'abrogation 
implicite  re*sulte  pour  ceux-ci  de  rimpossibilite  ou 
Ton  serait  de  concilier  leur  application  avec  Tetat 
de  choses  actuel.  On  congoit  que  1'embarras  du  juge 
soit  parfois  assez  grand  au  milieu  de  cet  amoncelle- 
ment  de  textes  non  co-ordonnes.  II  s'aggrave  du 
fait  que  les  decrets  ne  sont  pas  les  seules  sources  du 
droit  que  le  Conseil  a  a  consulter.  En  dehors  des 
textes  frangais,  il  doit  en  effet  s'inspirer  de  textes 
internationaux,  declarations  ou  conventions  adoptees 
dans  des  congres  ou  des  conferences  diplomatiques,  et 
qui  lient  les  Puissances  co-contractantes,  lorsqu'elles 
ont  etc"  dument  ratifiees  par  leurs  autorites  souveraines 
respectives.  II  doit  meme  parfois  appliquer  des 
textes  purement  etrangers,  par  exemple  lorsqu'il  a  a 
apprecier  les  relations  qui  unissent,  d'apres  leur  loi 
nationale,  deux  parties  momentanement  soumises  a 
sa  juridiction.  II  doit  encore  tenir  compte  des  usages 
nautiques  generalement  suivis,  tirer  parti  de  la  juris- 
prudence adoptee  par  ses  devanciers  frangais  des 
siecles  anterieurs,  ne  pas  negliger  celle  des  tribunaux 
de  prises  etrangers,  particulierement  quand  ce  sont 
ceux  de  Puissances  alliees,  enfin  respecter  en  toutes 
circonstances  T^quite.  Les  inspirations  qu'il  puisera 


STOWELL'S  JUDICIAL  WORK        47 

dans   ces   diverses   sources   ne   seront   pas   toujours 
d'accord  entre  elles.1 

From  falling  into  this  "  amas  de  textes  si 
varies,"  as  the  writer  of  this  interesting  paper 
in  another  place  terms  French  prize  law, 
which  can  be  studied  in  detail  in  Pistoye  and 
Duverdy's  Traite  des  prises  maritimes  (Paris, 
1885),  Lord  Stowell  for  all  time  effectually 
guarded  British  prize  law. 

In  so  doing  Stowell  surrounded  English 
prize  law  with  an  atmosphere  of  justice — 
not  so  much  by  actual  phrases  in  the  course 
of  a  judgment  as  by  the  continuous  exposition 
of  the  grounds  of  justice  on  which  his  decisions 
were  founded.  Sometimes,  it  is  true,  actual 
words  are  to  be  found  which  heighten  the 
effect  of  the  general  equity  of  the  judgment  by 
indicating  a  personal  sympathy  which,  how- 
ever, was  not  allowed  to  hinder  justice.  "  This 
is  an  unfortunate  case,"  so  we  read  in  the 
Two  Susannahs ; 2  "  the  Court  is  very  desirous 
that  full  justice  should  be  done  to  the  claimants, 
but  the  cargo  is  not  equal  to  it.  ...  The  ques- 
tion then  is,  whether  the  captors  have  acted 
so  irregularly  as  to  make  themselves  liable." 
The  answer  was  in  favour  of  the  captors,  but 
the  decision,  while  adverse  to  the  claimants, 

1  Revue    des    Deux    Mondes,    tome    trentieme — lre    livraison 
(ler  novembre,  1915,  p.  104,  art.  "  La  Juridiction  des  prises  "). 

2  1.  C.  Robinson,  p.  132. 


48  LORD  STOWELL 

recognized  that  they  had  a  reasonable  ground 
for  bringing  their  case  before  the  Court.  In 
another  and  later  case  Lord  Stowell  concluded 
a  judgment  by  which  a  claimant  was  held  to 
be  a  Dutch  subject,  whose  vessel  must  therefore 
be  condemned,  by  observing  that :  "  The 
Court  is  therefore  under  the  necessity  of 
considering  this  gentleman  as  a  merchant  of 
the  enemy's  country  and  of  pronouncing  the 
ship,  as  his  property,  liable  to  condemnation."  x 
It  is  not  necessary  to  emphasize  the  suggestive 
art  of  this  sentence — the  implication  of  an 
imperious  but  proper  claim  of  justice,  not 
less  than  the  courtesy  to  the  claimant  as  an 
individual.  Other  and  similar  passages  could 
be  collected,  but  apart  from  their  context 
they  are  less  striking,  and  it  is  the  cumu- 
lative effect  of  a  whole  series  of  judgments 
from  which  emanates,  by  reason  of  Stowell's 
masterly  manner,  a  sense  of  even-handed 
justice. 

A  very  different  scene  was  thus  spread 
before  the  legal  observer  after  the  lapse  of  a 
little  more  than  a  quarter  of  a  century  from 
the  day  when  Sir  William  Scott  took  his 
seat  as  a  judge.  Nine  volumes — except  the 
two  last  entirely  filled  with  prize  cases — 
enshrined  the  decisions  of  Lord  Stowell  in 
the  Prize  Court,  and  in  them  were  contained 

1  The  President,  5.  C.  Robinson,  p.  277. 


STOWELL'S  JUDICIAL  WORK        49 

a  series  of  precedents  so  comprehensive,  so 
full  of  principle,  and  so  logical  that  the  collec- 
tion was  of  greater  value  than  any  code,  since 
it  exhibited,  as  no  code  could,  the  application 
of  judicial  principles  to  concrete  and  varying 
facts.  From  beginning  to  end  they  retained 
a  continually  high  level  of  thought,  learning, 
form  and  expression,  revealing  keen  perception 
of  legal  principles  with  rare  insight  into  the 
value  of  facts. 

The  long  continuance  of  the  war  against 
Napoleon  was  a  fortunate  circumstance  for 
Stowell  in  the  role  of  law-giver,  it  made  his 
judicial  position  unique.  For  a  very  long 
period — year  after  year — he  alone  was  the 
Judge  of  the  Prize  Court,  no  colleague  modified 
his  views  or  differed  from  his  conclusions,  no 
colleague's  judgments  varied  the  continuity  of 
his  judicial  style.  He  was  master  of  the 
procedure  of  his  Court,  which  became  a  kind 
of  individual  judicial  domain.  The  Prize 
Court  was  thus,  through  a  concurrence  of 
circumstances,  identified  with  a  personality. 
There  was,  it  is  true,  a  Court  of  Appeal  in  the 
shape  of  the  Lords  Commissioners  of  Appeals 
in  Prize  Cases,  on  which  body  some  able  men 
were  to  be  found.  Sir  William  Grant  (1772- 
1859),  for  some  time  Master  of  the  Rolls,  was 
one  of  these,  and  seems  to  have  usually  acted 
as  President  of  the  Court :  his  reputation 


50  LORD  STOWELL 

among  his  contemporaries,  at  first  as  a  parlia- 
mentary debater  and  later  for  his  judicial 
grasp  and  the  admirable  expression  of  his 
judgments,  was  very  high.  But  the  decisions 
of  this  tribunal  were,  as  a  rule,  quite  baldly 
stated  and,  except  those  delivered  from  1809 
to  1811,  were  not  republished  in  a  volume, 
and  even  in  Acton's  Reports  there  is  scarcely 
a  judgment  which  is  more  than  a  few  lines 
in  length.  Stowell's  decisions  were,  moreover, 
affirmed  with  an  agreeable  monotony  which 
assisted  in  adding  to  the  authority  of  his 
judgments.  The  long-drawn-out  war  further 
enabled  him  to  accumulate  his  judgments, 
and  to  link  them  one  to  the  other,  to  develop 
an  embryonic  principle,  and  to  establish  it 
by  reference  not  to  one  set  but  to  a  series 
of  facts.  A  sense  of  continuity  and  of  system 
was  thus  created  which  gave  the  reports 
collected  by  Dr.  Christopher  Robinson  and 
Dr.  Dodson  the  value  of  a  treatise,  with  the 
additional  and  important  weight  of  judicial 
authority.  During  the  long  period  of  peace 
which  existed  from  November  20,  1815,  to 
March  27,  1854,  this  special  body  of  juris- 
prudence became  more  and  more  recognized 
as  authoritative  and  national. 

A  lasting  result  of  Stowell's  action  was  to 
introduce  a  remarkable  certainty  into  English 
prize  law.  Judicial  precedent  being  as  it 


STOWELL'S  JUDICIAL  WORK        51 

is  the  basis  of  modern  English  law,  Lord 
Stowell's  precedents,  especially  uninfluenced 
as  they  were  by  previous  decisions,  formed  at 
once  a  fixed  juridical  groundwork,  and  as 
they  were  so  little  varied  by  the  Court  of 
Appeal,  and  attained  at  once  among  lawyers 
and  statesmen  a  high  repute,  they  became 
year  by  year  more  solidly  established.  Lord 
Stowell  was  thus,  in  the  words  of  an  eminent 
English  judge  of  the  present  day,  rather  a 
law-giver  than  a  judge.  But  for  Stowell  there 
would  never  have  been  that  sharp  difference 
between  the  clear  and  definite  body  of  English 
prize  law  and  the  unsystematic  and  indefinite 
collection  of  administrative  decrees,  decisions, 
and  academic  opinions  which  constitute  con- 
tinental prize  law.  Nor  would  the  prize  law 
of  the  United  States  have  grown  up — as  it 
has  done — in  the  same  form  and  on  the  same 
principles  as  that  which  was  evolved  in 
Doctors'  Commons  between  1798  and  1828. 
Lord  Stowell  in  fact  lifted  British  prize  law 
to  a  quite  different  plane  from  that  on  which 
it  had  previously  rested  :  it  emerged  under 
his  guidance  from  the  condition  in  which  all 
other  prize  laws  still  are,  to  one  which  placed 
almost  the  entire  groundwork  on  a  basis  of 
reasoned  principles.  The  effect  he  could  have 
little  foreseen,  for  now  his  judgments  are  not 
only  in  some  degree  the  law  of  th£  United 


52  LORD  STOWELL 

States,  but  of  all  British  dominions  which 
have  come  to  manhood  since  his  time,  and 
in  which  Prize  Courts  have  in  recent  times 
been  established.  During  the  present  war  his 
decisions  have  guided  the  judges  of  British 
Prize  Courts  from  Egypt  to  Canada,  from  the 
Cape  of  Good  Hope  to  Hong-Kong. 


CHAPTER  V 

SOME   ILLUSTRATIVE   JUDGMENTS 

FOB  the  full  appreciation  of  Stowell's  work 
we  must  examine  with  some  particularity  a 
few  at  any  rate  of  his  decisions.  Reference 
has  already  been  made  to  a  notable  judgment 
on  the  subject  of  blockade,  one  which  in  the 
Napoleonic  Wars  was  of  much  importance 
alike  to  belligerents  and  to  neutrals. 

Stowell,  as  has  been  narrated,  took  his 
seat  as  Judge  of  the  Prize  Court  at  the  end 
of  October,  1798  ;  at  this  time  on  the  law  \ 
of  blockade  there  was  a  complete  absence 
of  British  juridical  authority.  This  is  not 
altogether  surprising,  for  maritime  warfare 
had,  until  the  wars^of  the  eighteenth  century, 
consisted  almost  entirely  in  the  destruction 
or  capture  at  sea  by  one  belligerent  of  the 
ships  of  the  other.  Stowell  soon  filled  this 
legal  gap,  and  within  seven  months  of  his 
appointment,  that  is  by  the  end  of  May,  1799, 
several  leading  and  important  principles  on 

63 


54  LORD  STOWELL 

this  branch  of  prize  law  had  been  formulated, 
explained,  and  established. 

The  basis  of  the  action  of  a  belligerent  in 
reference  to  a  blockade,  and  the  foundation 
and  justification  of  this  maritime  action,  was 
thus  enunciated  in  January  1799  :  "  A  block- 
ade," said  the  Judge,  "  is  a  sort  of  circum- 
vallation  round  a  place,  by  which  all  foreign 
correspondence  and  connection  is,  as  far  as 
human  effort  can  effect  it,  to  be  entirely  cut 
off.  It  is  intended  to  suspend  the  entire 
commerce  of  that  place,  and,"  there  follows 
one  result,  "  a  neutral  is  no  more  entitled  to 
assist  the  traffic  of  exportation  than  of  importa- 
tion." x  Such  being  the  elementary  rights  of 
a  belligerent,  it  was  Lord  Stowell's  object  to 
uphold  them  without  injustice  to  neutrals 
whose  freedom  of  commerce  was  obviously, 
but  necessarily,  diminished  by  the  exercise  of 
this  modern  form  of  maritime  warfare. 

For  the  proper  protection  of  the  belligerent's 
rights  it  was  declared  that  the  knowledge  of 
the  master  of  the  ship  which  broke  a  blockade 
affected  her  owners,  that  a  blockade  continued 
to  be  legally  in  existence  although  the  winds 
did  occasionally  drive  off  the  blockading 
squadron,  and  that  the  intention,  if  clearly 
proved,  to  break  a  blockade  rendered  a  ship 
and  cargo  which  belonged  to  the  same  owner 

1  The  Vrouw  Judith,  1.  C.  Robinson,  p.  150. 


ILLUSTRATIVE  JUDGMENTS        55 

liable  to  confiscation.  On  the  other  hand  a 
notification  of  a  blockade  without  a  sufficient 
investment  was  declared  not  to  found  a  legal 
blockade,  and  a  notification  of  a  blockade 
being  an  act  of  High  Sovereignty,  a  com- 
mander of  a  belligerent  ship  could  not  extend 
it.  It  was  also  laid  down  that  it  is  the  duty 
of  a  belligerent  country  which  has  instituted 
a  blockade  immediately  to  notify  the  dis- 
continuance of  it.  These  are  by  no  means 
the  whole  series  of  Stowell's  rulings  on  this 
one  subject,  which  are  to  be  found  in  the 
volumes  in  which  his  decisions  are  preserved, 
but  they  clearly  illustrate  the  rapid  and 
remarkable  change  which  came  over  English 
prize  law  almost  as  soon  as  he  became  the 
Judge  of  the  Court.  In  a  few  months  there 
were  publicly  enunciated  not  academic  pro- 
positions but  judicial  sentences  which  were 
binding  both  upon  the  British  as  belligerents 
and  upon  neutral  countries  whose  subjects 
were  parties  to  prize  proceedings,  and  which 
dispelled  all  doubts  on  the  subjects  which 
they  covered.  Multiply  the  seven  decisions 
on  blockade  delivered  within  seven  months 
by  the  succeeding  and  similar  spaces  of  time, 
and  it  is  possible  to  realize  the  extraordinary 
performance  of  Lord  StowelL  It  was  one 
which  proceeded  week  by  week,  month  by 
month,  until,  to  a  large  extent  from  the 


56  LORD  STOWELL 

peculiar  nature  of  English  law,  namely,  its 
judge-made  character,  it  resulted  in  a  firm 
and  permanent  mass  of  law — of  international 
custom  and  practice  explained  by  and  based 
on  reason — which  was  destined  to  endure 
and  to  be  the  guide  and  light  of  British,  and  of 
American,  judges  to  our  own  time. 

One  cause  of  Sto well's  judicial  influence 
was  his  intuitive  capacity  to  state  legal  pro- 
positions or  axioms  on  conduct  in  illuminating 
phrases.  Much  has  recently  been  heard  of 
the  doctrine  of  continuous  voyage,  which  has 
certainly  been  carried  beyond  the  range  which 
Stowell  gave  to  it.  But  his  decisions  on  this 
subject,  allowing  for  changes  in  modern 
commerce,  are  sufficient  to  justify  the  modern 
application  of  the  principle  to  contraband. 

Briefly  stated,  a  voyage  from  A  to  C  was 
illegal,  but  a  voyage  from  B  to  C  was  legal. 
It  is  unnecessary  to  refer  to  the  manner  in 
which  the  question  arose  out  of  certain  regula- 
tions in  regard  to  trade  between  French  and 
Spanish  colonies;  the  importance  of  it  arises 
in  regard  to  the  continuation  of  a  voyage — 
for  in  order  to  try  to  evade  the  law  a  vessel 
sailing  from  A  would  unload  the  cargo  at 
B  and  then  reload  it,  a  further  and  additional 
quantity  perhaps  being  added.  It  was  then 
contended  by  the  cargo  owner  that  the  voyage 
was  from  B  to  C  and  therefore  legal.  The 


ILLUSTRATIVE  JUDGMENTS        57 

question  arose  in  the  Prize  Court — Was  the 
voyage  from  A  to  C  a  continuous  transit  ? 
The  test  which  Stowell  applied  was  contained 
in  one  of  his  felicitous  phrases :  "  It  is  an 
inherent  principle  .  .  .  that  the  mere  touching 
at  any  port  without  importing  the  cargo  into 
the  common  stock  of  the  country  will  not 
alter  the  nature  of  the  voyage  which  continues 
the  same  in  all  respects  and  must  be  considered 
as  a  voyage  to  the  country  to  which  the 
vessel  is  actually  going  for  the  purpose  of 
delivering  the  cargo  at  the  ultimate  port." l 

The  pregnant  words,  "  importation  into 
the  common  stock  of  the  country,"  have 
become  classical  because  they  express  so  much 
in  a  single  phrase.  The  Supreme  Court  of 
the  United  States  incorporated  them  in  a 
unanimous  judgment  of  that  Court  during 
the  Civil  War.  "  Neutrals,"  said  Chief  Justice 
Chase,  "  may  convey  in  neutral  ships  from 
one  neutral  port  to  another,  any  goods,  whether 
contraband  of  war  or  not,  if  intended  for 
actual  delivery  at  the  port  of  destination  and 
to  become  part  of  the  common  stock  of  the 
country  or  of  the  port." 2  In  the  case  of 
the  Kim  Sir  Samuel  Evans  observed :  "  As 
to  the  real  destination  of  a  cargo,  one  of  the 
chief  tests  is  whether  it  was  consigned  to  the 

1  The  Maria,  5.  C.  Robinson,  p.  364. 
2  The  Bermuda,  3.  Wallace,  p.  514. 


58  LORD  STOWELL 

neutral  port,  to  be  there  delivered,  for  the 
purpose  of  being  imported  into  the  common 
stock."  1  These  historical  words  are,  there- 
fore, sufficiently  extensive  to  cover  in  principle 
the  case  of  goods  of  a  contraband  character 
passing  through  a  neutral  to  a  belligerent 
country,  provided  that  the  port  of  discharge 
is  not  to  be  considered  as  the  ultimate  destina- 
tion. Stowell  is  careful  also  to  use  the  words 
"  ultimate  port,"  and  if  these  be  regarded  as 
containing  the  principle  that  the  actual  destina- 
tion of  the  goods,  be  it  a  maritime  port  or  an 
inland  city,  is  to  be  looked  to,  then  Lord 
StowelPs  decision  in  effect  covers  the  modern 
development  of  the  doctrine  of  continuous 
voyage.2 

Stowell  was  not  the  man  to  be  bound  by  mere 
precedents.  If  he  had  not  possessed  an  ample 
legal  outlook  and  a  good  deal  of  confidence  he 
would  never  have  been  able  to  construct  the 
spacious  legal  structure  which"  is  his  permanent 
memorial.  Under  different  conditions  it  is 
certain  that  he  would  have  applied  accepted 
principles  of  the  law  of  nations  to  each  new  set 

1  1.  British  and  Colonial  Prize  Cases,  at  p.  481. 

2  "  That  he  [Stowell]  did  not  regard  a  neutral  destination  of  the 
ship  as  conclusive  against  a  condemnation  of  contraband  goods  on 
board  her  appears  in  the  Rapid,  Edwards  228,  which  was  the  case 
of  a  ship  carrying  a  dispatch  addressed  to  a  hostile  minister  "  (The 
Collected  Papers  of  John   WestlaJce   on  Public  International  Law, 
p.  466).     It  may  be  doubted  if  the  Rapid  has  quite  the  effect  which 
the  late  Professor  Westlake  attaches  to  it,  but  his  view  is  of  interest 
on  the  point  of  StowelPs  probable  action  under  modern  conditions. 


ILLUSTRATIVE  JUDGMENTS        59 

of  circumstances,  and  have  shown  that  the  prize 
law  of  Great  Britain  is  capable,  not  less  than 
the  common  law,  of  an  evolution  which  enables 
it  to  correspond  with  contemporary  needs. 
Once,  for  example,  that  it  is  admitted  that 
a  belligerent  may  prevent  certain  articles, 
which  are  classed  as  contraband,  from  reaching 
his  enemy,  it  follows  that  he  is  entitled  to 
take  such  measures  as  will  effect  this  object — 
measures  which  are  suitable  to  new  conditions. 
To  confine  principles  to  circumstances  peculiar 
to  a  past  generation  is  in  effect  to  negative 
the  application  of  those  principles.1  It  is  one 
of  the  advantages  of  a  case  law  that  it  enables 
such  application  to  be  made  with  less  friction 
than  a  rigid  code. 

The  value  of  Lord  StowelPs  clarifying 
capacity  can  best  be  understood  by  an  illus- 
tration from  the  case  of  the  Emmanuel? 
The  vessel  in  this  affair  was  a  neutral  ship 
carrying  an  enemy  cargo  and  was  captured 
in  the  coasting  trade  of  Spain,  that  is,  of  a 
belligerent.  The  cargo  having  been  con- 
demned, the  owner  of  the  ship  claimed  freight 
from  the  captors.  The  Judge  first  of  all 
considered  the  case  on  principle,  and  pro- 
mulgated the  general  rule  that  "  where  a 
capture  is  made  of  a  cargo  the  property  of 

1  See  Appendix  II. 
2  1.  C.  Robinson,  p.  296  ;  1.  English  Prize  Cases,  p.  141. 


60  LORD  STOWELL 

an  enemy  carried  in  a  neutral  ship,  the  neutral 
shipowner  obtains  against  the  captor  those 
rights  which  he  had  against  the  enemy.'* 
Then  he  stated  the  exceptions  to  this  general 
rule,  one  of  which,  it  was  contended,  was  the 
fact  that  the  vessel,  as  in  this  instance,  was 
engaged  in  the  coasting  trade  of  the  enemy. 
The  authorities  on  the  point  were  in  conflict : 
in  three  instances  the  Prize  Court  had  decreed 
payment  of  freight  "  under  an  intimation  of 
the  very  learned  person  who  preceded  me." 
On  the  other  hand  "  a  case  before  the  Lords 
seems  to  convey  a  different  opinion  upon  this 
subject  of  the  coast  trade  of  the  enemy,  the 
case  of  the  Mercurius  in  which  freight  was 
refused."  Stowell  decided  the  case  before 
him  by  refusing  to  allow  the  claim  for  freight, 
but  the  judgment  was  not  a  bare  determination 
of  the  issue,  it  contained  reasons  for  holding 
that  freight  was  not  payable  by  the  captor  : 
"  As  to  the  coasting  trade  (supposing  it  to  be 
a  trade  not  usually  opened  to  foreign  vessels), 
can  there  be  described  a  more  effective  accom- 
modation that  can  be  given  to  an  enemy 
during  a  war  than  to  undertake  it  for  him 
during  his  own  disability  ?  Is  it  nothing 
that  the  commodities  of  an  extensive  empire 
are  conveyed  from  the  parts  where  they  grow 
and  are  manufactured  to  other  parts  where 
they  are  wanted  for  use  ?  It  is  said  that 


ILLUSTRATIVE  JUDGMENTS         61 

this  is  not  importing  anything  into  the  country, 
and  it  certainly  is  not ;  but  has  it  not  all  the 
effects  of  such  an  importation  ?  Supposing 
that  the  French  navy  had  a  decided  ascendant, 
and  had  cut  off  all  British  communication 
between  the  northern  and  southern  parts  of 
this  island,  and  that  neutrals  interposed  to 
bring  coals  of  the  north  for  the  supply  of 
the  manufactures  and  for  the  necessities  of 
domestic  life  in  this  metropolis ;  is  it  possible 
to  describe  a  more  direct  and  a  more  effectual 
opposition  to  the  success  of  French  hostility 
short  of  an  actual  military  assistance  in  the 
war  ?  " 1 

It  may  be  that  the  reasoning  which  Stowell 
applied  to  the  case  of  a  neutral  vessel  engaged 
in  the  coasting  trade  (which  was  a  more 
distinct  business  in  the  eighteenth  century 
than  it  is  in  modern  times)  of  a  belligerent 
might  very  well  be  applied  to  one  trading  with 
the  enemy  at  all.  Be  that  as  it  may,  StowelFs 
decision  in  1799  put  the  particular  point  be- 
yond question  for  the  immediate  future  at  any 
rate,  and,  under  the  circumstances,  of  the  age. 

No  better  example  of  the  decisive  and 
determining  effect  of  Stowell' s  judicial  influence 
could  be  noted  than  its  effect  on  the  law  of 
contraband.  On  no  subject  was  there  less 
certainty,  which  was  quite  natural,  for  "  two 

1  1.  English  Prize  Cases,  p.  144. 


62  LORD  STOWELL 

opposite  tendencies  have  never  ceased  to  divide 
the  world  on  the  subject,  the  one  pointing 
to  a  more  restricted  prohibition  of  neutral 
commerce,  the  other  to  a  prohibition  at  once 
larger  and  not  definitely  limited." 1  These 
adverse  views  had  been  more  than  once 
embodied  in  treaties,  that  of  Whitehall  between 
England  and  Sweden  in  1661  being  the  most 
important  from  the  point  of  view  of  a  belli- 
gerent. When  Stowell  took  his  seat  in  the  Prize 
Court,  it  had  been  established  that  certain 
articles  were  unmistakably  absolute  contra- 
band, but  there  was  no  little  uncertainty  in 
regard  to  conditional  contraband,  and,  what 
was  more  important,  there  were  not  to  be 
found  any  decisions  which,  by  laying  down 
definite  rules,  could  be  employed  as  tests  on 
application  to  given  facts.  Certain  goods, 
as  oil  and  saltpetre,  had  been  declared  free 
or  confiscable,  but  without  a  word  of  elucida- 
tion or  reasoning.2  Within  six  months  after 
Lord  Stowell  had  become  Judge  of  the 
Admiralty  Court  he  had  delivered  a  judgment 
which  went  far  beyond  the  actual  articles — 
cheeses— which  were  the  subject  of  discussion. 
The  Judge  first  established  the  legal  existence 
of  a  class  of  goods  which  were  conditional 
contraband,  and  skilfully  dwelt  on  the  confusion 

1  Westlake,  International  Law,  Pt.  II.  p.  278. 

2  E.g.  the  St.  Jacob,   1.  English  Prize   Cases,  p.  6  (oil,  free) ; 
the  Jesus,  1.  English  Prize  Cases,  p.  6  (saltpetre,  confiscable). 


ILLUSTRATIVE  JUDGMENTS'        63 

in  which  the  subject  was,  at  the  moment, 
involved.  "  If  it  could  be  laid  down  as  a 
general  position,  in  the  manner  in  which  it 
has  been  argued,  that  cheese  being  a  provision 
is  universally  contraband,  the  question  would 
be  readily  answered ;  but  the  Court  lays 
down  no  such  position.  The  catalogue  of 
contraband  has  varied  very  much,  and  some- 
times in  such  a  manner  as  to  make  it  very 
difficult  to  assign  the  reason  of  the  variations, 
owing  to  particular  circumstances,  the  history 
of  which  has  not  accompanied  the  history  of 
the  decisions.  In  1673,  when  many  unwarrant- 
able rules  were  laid  down  by  public  authority 
respecting  contraband,  it  was  expressly  asserted 
by  Sir  R.  Wiseman,  the  then  King's  Advocate, 
upon  a  formal  reference  made  to  him,  that 
by  the  practice  of  the  English  Admiralty, 
corn,  wine,  and  oil  were  liable  to  be  deemed 
contraband.  '  I  do  agree,'  says  he,  reprobat- 
ing the  regulations  that  had  been  published, 
and  observing  that  rules  are  not  to  be  so  hardly 
laid  down  as  to  press  upon  neutrals,  '  that 
corn,  wine,  and  oil  will  be  deemed  contraband.' 
"  These  articles  of  provisions,  then,  were 
at  that  time  confiscable,  according  to  the 
judgment  of  a  person  of  great  knowledge  and 
experience  in  the  practice  of  the  Court.  In 
much  later  times  many  other  sorts  of  provisions 
have  been  condemned  as  contraband.  In  1747, 


64  LORD  STOWELL 

in  the  Jonge  Andreas,  butter  going  to 
Rochelle  was  condemned ;  how  it  happened 
that  cheese  at  the  same  time  was  more  favour- 
ably considered,  according  to  the  case  cited 
by  Dr.  Swabey,  I  don't  exactly  know.  The 
distinction  appears  nice ;  in  all  probability 
the  cheeses  were  not  of  the  species  which  is 
intended  for  ship's  use.  Salted  cod  and 
salmon  were  condemned  in  the  Jonge  Frederick, 
going  to  Rochelle,  in  th&  same  year.  In  1748, 
in  the  Joannes,  rice  and  salted  herrings  were 
condemned  as  contraband.  These  instances 
show  that  articles  of  human  food  have  been 
so  considered,  at  least  where  it  was  probable 
that  they  were  intended  for  naval  or  military 
use. 

"  I  am  aware  of  the  favourable  positions 
laid  down  upon  this  matter  by  Wolfius  and 
Vattel,  and  other  writers  of  the  Continent, 
although  Vattel  expressly  admits  that  pro- 
visions may,  under  circumstances,  be  treated 
as  contraband.  And  I  take  the  modern 
established  rule  to  be  this,  that  generally 
they  are  not  contraband,  but  may  become 
so  under  circumstances  arising  out  of  the 
particular  situation  of  the  war  or  the  condi- 
tion of  the  parties  engaged  in  it.  The  Court 
must  therefore  look  to  the  circumstances  under 
which  this  supply  was  sent." 

Then   the    Judge    goes    on    not    to    decide 


ILLUSTRATIVE  JUDGMENTS        65 

abruptly,  as  his  predecessors  were  in  the  habit 
of  doing,  and  without  reason,  that  the  articles 
were  not  confiscable,  but  to  propound  a  rule 
by  which  the  character  of  the  article  could 
be  judged.  "  The  most  important  distinction 
is  whether  the  articles  were  intended  for  the 
ordinary  use  of  life  or  even  for  mercantile 
ships'  use,  or  whether  they  were  going  with 
a  highly  probable  destination  to  military  use. 
Of  the  matter  of  fact  on  which  the  distinction 
is  to  be  applied,  the  nature^  and  quality  of 
the  port  to  which  the  articles  were  going  is 
not  an  irrational  test.  If  the  port  is  a  general 
commercial  port  it  shall  be  understood  that 
the  articles  were  going  for  civil  use,  although 
occasionally  a  frigate  or  other  ships  of  war 
may  be  constructed  in  that  port.  Contra, 
if  the  great  predominant  character  of  a  port 
be  that  of  a  port  of  naval  military  equipment, 
it  shall  be  intended  that  the  articles  were  going 
for  military  use,  although  merchant  ships 
resort  to  the  same  place,  and  although  it  is 
possible  that  the  articles  might  have  been 
applied  to  civil  consumption ;  for  it  being 
impossible  to  ascertain  the  final  use  of  an 
article  ancipitis  usus,  it  is  not  an  injurious  rule 
which  deduces  both  ways  the  final  use  from 
the  immediate  destination  ;  and  the  presump- 
tion of  a  hostile  use,  founded  on  its  destination 
to  a  military  port,  is  very  much  inflamed  if 


66  LORD  STOWELL 

at  the  time  when  the  articles  were  going  a 
considerable  armament  was  notoriously  pre- 
paring, to  which  a  supply  of  those  articles 
would  be  eminently  useful.  ..." 

"  Attending  to  all  these  circumstances,  I 
think  myself  warranted  to  pronounce  these 
cheeses  to  be  contraband,  and  condemn  them 
as  such."  x 

Stowell  thus  crystallized  this  rule  of  law  in 
this  particular  point,  leaving  it  at  once  flexible 
and  clear.  Are  the  articles  "  going  with  a 
highly  probable  destination  to  military  use  "  ? 
It  is  this  military  use  which  makes  them 
noxious  from  the  point  of  view  of  the  belliger- 
ent, and  when  this  is  clear  the  Court  has  no 
difficulty ;  but  where  the  circumstances  are 
obscure  then  certain  presumptions  may  be 
decisive  in  affecting  its  decision.  The  law  to 
be  applied  in  the  future  was  thus  rendered 
clear  not  only  for  Great  Britain  but  likewise 
for  the  United  States,  which,  says  Westlake, 
"  maintain  the  British  view  on  contraband 
which  they  have  inherited  " — an  inheritance 
which  was  in  a  great  degree  made  possible 
by  the  decision  by  which  in  1799  Stowell 
illuminated  the  law. 

On  an  earlier  page  (p.  32)  the  subject  of 
joint  capture  was  enumerated  as  one  of  those 

1  The    Jonge    Margaretha,    1.    C.   Robinson,    189;     1.   English 
Prize  Cases,  100. 


ILLUSTRATIVE  JUDGMENTS        67 

which  fall  within  the  jurisdiction  of  the  Prize 
Court.  Stowell  was  never  more  at  home 
than  in  deciding  between  the  rival  claims  of 
gallant  seamen,  to  whom  his  decision  was 
often  of  no  little  pecuniary  importance ;  for  a 
share  in  a  rich  prize  meant  that  a  substantial 
sum  of  money  passed  into  the  pocket  of  the 
commander  of  a  ship,  of  a  ship  of  the  Royal 
Navy,  and  lesser  amounts  into  those  of  his 
subordinates.  In  these  cases  Stowell  always 
endeavoured,  as  was  his  wont,  to  enunciate 
some  principle,  so  that  a  single  decision 
frequently  governed  other  disputes  arising  on 
somewhat  similar  facts.  A  case  called  the 
Forsigheid  x  is  an  excellent  illustration.  This 
vessel  was  actually  captured  by  a  ship  of 
war  called  the  Dictator  and  other  vessels ; 
another  detachment  of  the  Admiral's  fleet 
was  eight  miles  distant,  but,  owing  to  fog,  was 
not  in  sight  of  the  actual  captors  when  the 
enemy  vessel  surrendered.  Still  they  claimed 
to  be  entitled  to  a  share  of  the  booty.  The 
Judge  laid  down  that  when  vessels  are  associated 
together  by  public  authority  the  whole  fleet 
is  entitled  to  share  in  the  proceeds  of  the 
capture,  although  some  of  them  might  be  out 
of  sight  at  the  time.  "  The  fleet  so  associated 
is  considered  as  one  body,  unless  detached  by 
orders,  or  entirely  separated  by  accident,  and 

1  3.  C.  Robinson,  311. 


68  LORD  STOWELL 

what  is  done  by  one,  continuing  to  compose 
in  fact  a  part  of  that  fleet,  enures  to  the 
benefit  of  all."  No  accidental  separation  was 
suggested  in  the  Forsigheid,  and  Stowell 
decided  that  the  whole  fleet  was  therefore 
entitled  to  share,  as  well  as  those  in  sight  at 
the  time  of  capture.  Decisions  such  as  this 
made  the  name  of  Stowell  a  familiar  word  in 
every  British  ship  of  war;  for  the  judgments 
that  he  gave  on  the  thorny  subject  of  joint 
capture  were  based  on  principles  of  equity 
and  on  common  sense,  so  that  they  commanded 
general  approval  in  the  fleets. 

These  decisions  have  now  lost  their  legal 
value,  but  they  are  still  interesting  reading; 
for  they  are  concise  descriptions  of  stirring, 
if  forgotten,  incidents  in  the  maritime  warfare 
at  the  end  of  the  eighteenth  century,  the 
smaller  details  of  which  have  been  necessarily 
overshadowed  by  great  encounters.  They  tell, 
in  fact,  of  the  constant  encounters  which  made 
up  the  daily  life  of  the  Navy  in  time  of  war. 
They  are  not  less  illustrative  of  StowelPs 
judicial  sagacity.  They  were,  too,  of  com- 
mercial importance;  for  privateers  were  fitted 
out  by  the  merchants  of  Liverpool  and  of 
Bristol  as  business  speculations,  and  the  result 
of  a  judgment  of  Stowell  might,  therefore, 
make  all  the  difference  between  a  fortunate 
and  a  disastrous  venture.  They  had  some- 


ILLUSTRATIVE  JUDGMENTS        69 

times  even  a  larger  application ;  for  a  decision, 
for  instance,  which  stated  a  general  rule  that 
the  being  in  sight  by  a  privateer  of  a  capture 
by  a  ship  of  war  did  not  entitle  a  privateer  to 
share  in  the  prize,  settled  the  claims  of  many 
owners  and  crews  of  private  ships  of  war,  and 
prevented  a  maritime  practice  by  small  priva- 
teers of  hanging  on  His  Majesty's  ships  to 
pick  up  the  crumbs  of  the  captures.  In  fact, 
Stowell  had  to  act  as  a  kind  of  dispenser  of 
discipline  over  the  numerous  brave  and  not 
too  scrupulous  privateers. 


CHAPTER  VI 

THE    STOWELL   CASE   LAW   AND   THE 
DECLARATION    OF   LONDON 

IT  has  already  been  observed  (ante,  p.  38) 
that  one  important  result  of  StowelPs  work 
was  to  assimilate  British  prize  law  in  form  and 
in  character  with  English  municipal  law,  and 
to  impress  on  it  some  marked  national  features. 
During  the  Crimean  War  of  1854  this  body  of 
law,  formulated  by  Stowell,  was  tested,  ap- 
proved, and  enlarged  by  a  later  generation  of 
lawyers,  so  that  at  the  beginning  of  this  century 
Great  Britain  was  the  only  Power  which  pos- 
sessed a  complete  system  of  prize  law  at  once 
reasoned,  definite  and  well  tried — one  which 
was  in  harmony  with  the  national  traditions  of 
English  jurisprudence,  and  easy  of  application 
to  facts. 

One  must  now  mention  that  in  1907  there 
had  assembled  at  the  Hague  an  official  inter- 
national gathering  known  as  the  second  Peace 
Conference,  which  approved  the  creation  of  an 
international  Court  of  Appeal. 

70 


THE  STOWELL  CASE  LAW          71 

The  seventh  article  of  the  Convention,  which 
was  a  result  of  this  meeting,  states  that  when, 
in  any  particular  case  brought  before  the 
International  Court,  the  question  at  issue  is 
not  governed  by  a  treaty  binding  upon  the 
parties,  the  Court  "  shall  apply  the  rules  of 
international  law.  If  no  generally  recognized 
rules  exist,  the  Court  shall  give  judgment  in 
accordance  with  the  general  principles  of  justice 
and  equity."  A  stipulation  of  this  nature  was 
unanimously  decided  by  all  the  Powers  repre- 
sented at  the  second  Peace  Conference  to  be 
an  essential  feature  of  any  system  of  inter- 
national jurisdiction  in  matters  of  prize  which 
could  have  practical  value.1 

Though  obviously  a  Court  composed  of 
jurists  of  different  nationalities  needed  some 
definite  code  of  law,  if  it  was  to  be  of  practical 
use,  yet  it  was  equally  clear  that  this  mis- 
cellaneous Court  would  not  be  guided  by 
British  prize  law,  which  was  in  effect  the  only 
systematic  and  authoritative  prize  law  in 
existence.  Thus,  rightly  or  wrongly  from  a 
British  point  of  view,  the  next  step  was  to 
formulate  the  rules  of  international  law  re- 
lating to  prize,  and  to  arrive  "  by  common 
agreement  at  a  uniform  definition  of  the  main 
principles  of  the  existing  law  to  whose  spirit 

1  Correspondence  and  Documents  respecting  the  International 
Naval  Conference,  held  in  London,  December  1908-February  1909, 
p.  20. 


72  LORD  STOWELL 

all  nations  are  without  doubt  anxious  to 
conform."  x  For  this  purpose  an  international 
Conference  assembled  in  London  in  1908  and 
1909,  which  produced  the  instrument  which, 
under  the  title  of  the  Declaration  of  London, 
has  since  been  so  much  and  so  often  discussed 
and  criticized. 

The  Preliminary  Provision  of  the  Declara- 
tion of  London  stated  "  that  the  Signatory 
Powers  are  agreed  that  the  rules  contained  in 
the  following  chapters  correspond  in  substance 
with  the  generally  recognized  principles  of 
international  law."  But  the  Declaration  was 
not  ratified  by  Great  Britain — the  causes  of  this 
non-ratification  it  is  unnecessary  to  discuss, 
for  it  is  the  position  of  the  Stowell  case  law 
vis-a-vis  the  Declaration  of  London  which  is 
of  practical  and  juristic  interest  in  these  pages. 

It  is  unquestionably  remarkable  that  a 
nation  with  a  body  of  prize  law  such  as  Great 
Britain  possessed,  which  was  binding  on  every 
Prize  Court  within  the  world -wide  British 
dominions,  should,  whatever  were  the  motive, 
have  so  lightly  set  forth  to  supersede  it  by  a 
new  code  of  rules,  which  were,  in  form,  at 
variance  with  the  general  body  of  English  law, 
and  which  were  necessarily  less  adaptable  to 
variable  groups  of  facts  than  the  decisions  of 
the  Stowell  system,  under  which,  for  practical 

1  Correspondence,  p.  22. 


THE  STOWELL  CASE  LAW          73 

purposes,  must  now  be  included  subsequent 
decisions  of  the  Prize  Court  and  of  the  Privy 
Council, — those  which  were  delivered  during 
the  Crimean  War.  For  a  code  has  an  apparent 
clearness  only,  since  it  is  a  bald  and  necessarily 
brief  statement  of  legal  conduct,  and  not  an 
enunciation  of  reasons  in  consequence  of  which 
a  certain  line  of  conduct  is  declared  to  be  legal 
or  illegal.  It  cannot  therefore,  except  in 
reference  to  a  limited  number  of  facts,  be  as 
effective  a  legal  instrument  as  a  series  of  judicial 
precedents  the  reasons  for  which  can  be  applied 
to  new  and  unexpected  groups  of  facts. 

The  pontifical  announcement  of  the  legal 
truth  of  the  Declaration  of  London  contained 
in  the  Preliminary  Provision  has  been  quoted ; 
it  was  a  singular  statement;,  because  in  many  ( 
parts  the  rules  which  were  formulated  were  \ 
the  results  of  a  compromise.  In  spite  of  it, 
however,  the  non-ratification  of  this  instru- 
ment rendered  the  Declaration  of  doubtful 
legal  value.  "  As  an  article  of  the  Declaration 
it  has  no  force,"1  said  Sir  Samuel  Evans. 
"  The  matter  stands  in  this  way.  The  De- 
claration of  London,  1909,  is  not  a  binding 
document  on  any  of  the  nations  of  the  world, 
and  when  the  war  broke  out  the  matter  was 
at  large."  2  Accordingly,  soon  after  the  out- 

1  The  Sorfareren,  1.  British  and  Colonial  Prize  Cases,  p.  589. 
3  Sir  John  Simon,  A.-G.,  in  the  Kalwyk,  1.  British  and  Colonial 
Prize  Cases,  p.  282. 


74  LORD  STOWELL 

break  of  war  an  Order  in  Council *  tc  adopted 
and  put  in  force  "  the  Declaration  with  certain 
important  additions  and  modifications.  The 
accuracy  of  the  Preliminary  Provision  was 
thus  at  once  contradicted  and  the  legal 
authority  of  the  Declaration  was  weakened. 
In  a  country  in  which  administrative  Orders 
can  be  regarded  as  valid  without  question,  no 
criticism  could  be  levelled  against  an  instru- 
ment so  promulgated.  But  the  Order  in 
Council  of  October  1914,  by  throwing  over  one 
part  of  the  Declaration  of  London,  cast  a 
doubt  on  every  part  which  could  not  in  itself 
be  supported  by  some  authority.  The  first 
Order  was  followed  by  further  variations  of 
the  Declaration.2  Next  came  the  almost 
dramatic  refusal  of  the  Government  to  regard 
the  Declaration  as  possessing  any  official 
weight.  "  He  had  constantly,"  said  the  Under- 
secretary for  Foreign  Affairs  (Lord  Robert 
Cecil)  in  the  House  of  Commons  on  March  9, 
1916,  "  told  the  House  that  in  his  view  the 
Declaration  of  London  as  an  instrument  had 


1  Order   in   Council    adopting   during    the    Present    Hostilities 
the  Provisions  of  the  Convention  known  as  the  "  Declaration  of 
London,"  with  Additions  and  Modifications,  Manual  of  Emergency 
Legislation,  1914,  p.  143. 

2  Order  in  Council,  October  29,   1914,  Manual  of  Emergency 
Legislation,  p.  78. 

Order  in  Council,  March  30,  1916.  In  this  Order  it  is  stated  that 
it  is  no  longer  expedient  to  adopt  Art.  19  of  the  Declaration  of 
London,  and  that  doubts  have  arisen  as  to  the  effect  of  Art.  1  of 
the  Order  of  October  1914. 


THE  STOWELL  CASE  LAW          75 

no  binding  force  whatever.  Certain  parts  of 
it  had  been  selected  by  the  Government  of  the 
day  on  the  outbreak  of  war  as  embodying 
what  they  believed  to  be  the  principles  of 
international  law  between  belligerents  and 
neutrals,  and  they  thought  it  convenient  to 
refer  to  the  Declaration  as  embodying  those 
principles ;  but  the  Government  never  in- 
tended— certainly  the  present  Government  did 
not  intend — to  be  bound  by  the  Declaration 
of  London  apart  from  and  so  far  as  it  differed 
from  the  principles  of  international  law  which 
prevailed  at  the  time  of  the  outbreak  of  the 
war.  There  was  much  doubt  among  lawyers 
whether  the  issue  of  an  Order  in  Council  stating 
that  the  Government  intended  to  adopt  the 
Declaration  of  London  would  bind  the  Prize 
Court,  and  whether  that  Declaration  contained 
principles  which  were  not  in  accordance  with 
the  principles  of  international  law ;  but 
whether  that  were  or  were  not  so,  the  policy 
of  the  Government  was  to  abide  by  the  prin- 
ciples of  international  law,  whether  they  were 
in  our  favour  or  not,  and  to  adhere  to  them 
and  to  them  only.  Only  so  far  as  the  Declara- 
tion embodied  those  principles  had  the  Govern- 
ment any  intention  of  being  bound  by  it." l 

1  While  this  book  was  passing  through  the  Press,  it  was  officially 
announced  that  the  British  and  French  Governments  would  no 
longer  continue  their  partial  adoption  of  the  Declaration.  See 
Order  in  Council,  8th  July  1916. 


76  LORD  STOWELL 

The  Declaration  also  received  a  severe 
blow  from  the  Privy  Council,1  which  decided 
that  a  proposition  of  prize  law  could  not  be 
declared  by  an  Order  in  Council  to  be  bind- 
ing on  the  Prize  Court,  and  that  this  Court 
must  base  its  decisions  on  the  law  of  nations. 
For  the  purposes  of  the  Prize  Court  the 
Stowell  case  law  may  be  regarded  as  embody- 
ing the  law  of  nations  in  relation  to  such 
facts  as  Stowell  ?s  decisions  cover  or  to  which 
they  can  now  be  applied.  They  may,  like 
all  other  decisions,  bey  as  the  phrase  is,  "  dis- 
tinguished " —in  other  words,  be  found  by 
the  tribunal  which  is  examining  them  not 
to  be  applicable  to  the  case  under  discussion. 
But  speaking  broadly,  the  case  of  the  Zamora, 
which  will  become  historical,  is  a  strong  support 
to  British  case  law  as  embodied  in  the  decisions 
first  of  all  of  Stowell  and  subsequently  in  those 
of  Dr.  Lushington  and  Sir  Samuel  Evans,  not 
to  speak  of  the  Privy  Council,  and  a  blow  to 
the  Continental  system  of  enunciating  law  by 
administrative  decrees.  When,  in  1811,  the 
subject  of  the  validity  of  Orders  in  Council 
was  argued  before  Stowell,  he  ingeniously 
evaded  any  difficulties  by  assuming  that  the 
Order  in  Council  which  was  relevant  to  the 
facts  of  the  case  was  in  accordance  with  inter- 
national law,2  though  he  also  stated  a  dictum 

1  The  Zamora,  2.  British  and  Colonial  Prize  Cases,  p.  1. 
-  The  Fox,  Edwards,  p.  311  ;  2.  English  Prize  Cases,  p.  61. 


THE  STOWELL  CASE  LAW          77 

as  to  the  legislative  rights  of  the  King  in 
Council  which  the  Judicial  Committee  in  the 
Zamora  regarded  as  erroneous.  Of  course,  if 
an  Order  in  Council  were  based  on  an  invulner- 
able decision  of  Stowell,  or  on  an  admitted 
principle  of  the  law  of  nations  not  contained 
in  a  judgment  of  the  Prize  Court,  it  could  not 
be  impugned  in  the  Prize  Court,  not  because 
of  its  administrative  character,  but  because  it 
stated  a  legal  truth. 

The  episode  of  the  Declaration  of  London — 
and  it  is  in  the  history  of  English  prize  law 
only  an  episode — has  been  briefly  sketched  not 
for  the  purpose  of  giving  a  narrative  of  this 
instrument  itself  and  of  the  discussions  which 
it  has  raised,  but  because  of  its  importance  in 
relation  to  the  history  of  the  Stowell  case  law. 
We  have  seen  a  Utopian  and  unpractical  start, 
an  apparent  completion  of  an  ideal,  then  the 
shock  sustained  by  an  academic  structure 
suddenly  plunged  into  the  area  of  a  state  of 
war.  We  must  add  that  we  have  also  seen  the 
Declaration  of  London  finally  and  authorita- 
tively reduced  to  the  position  of  a  mere  com- 
pendium, the  several  parts  of  which  are 
valuable  to  a  British  Prize  Court  only  so  far 
as  they  embody  the  principles  of  the  law  of 
nations  which  have  to  be  ascertained  by  the 
Prize  Court.1 

1  In  the  Lorenzo,  1.  British  and  Colonial  Prize  Cases,  p.  226.  the 


78  LORD  STOWELL 

It  is  of  some  interest  and  importance  to 
observe  how  the  Declaration  of  London  has 
fared  in  the  Prize  Court  before  Sir  Samuel 
Evans.  In  three  only  of  the  decisions  re- 
ported in  the  first  volume  of  the  British  and 
Colonial  Prize  Cases  of  the  Prize  Court  in 
London  has  the  Declaration  of  London  been 
discussed.  In  one,  it  was  held  that  Article  43 
was  not  applicable  to  contraband  goods  which 
were  enemy  property,  and  that  it  had  therefore 
no  bearing  on  the  facts  before  the  Court.1  In 
an  earlier  decision  it  was  held  that  a  neutral 
vessel  sailing  from  a  neutral  port  with  goods 
which  became  contraband  after  the  date  of  sail- 
ing was  entitled  to  freight.2  In  this  instance 
the  decision  was  based  on  a  general  principle, 
which  can  be  found  in  many  decisions  of 
Stowell,  that  when  there  is  no  delictum  or 
guilt  in  a  claimant  he  cannot  be  deprived  of 
his  rights.  In  the  Kim 3  the  Order  in  Council 
of  October  29  was  regarded  as  enlarging  the 
presumptions  contained  in  Article  34  of  the 


Prize  Court  of  St.  Lucia  condemned  an  American  steamer  under 
Article  40  of  the  Declaration  of  London.  In  the  Hakan  (July  3, 
1916)  Sir  S.  Evans  condemned  a  Danish  vessel,  not  on  Article  40, 
but  on  the  ground  that  international  law  had  changed  on  this  point 
since  the  decision  of  Lord  Stowell  in  the  Ringende  Jacob  (1.  C.  Rob. 
p.  89;  1.  English  Prize  Cases,  p.  61).  The  rule  of  Article  40  was 
not  based  on  any  principle,  and  the  question  by  it  was  reduced  to 
one  of  a  mere  rule  of  thumb. 

1  The  Sorfareren,  1.  British  and  Colonial  Prize  Cases,  p.  589. 

2  The  Katwyk,  1.  British  and  Colonial  Prize  Cases,  p.  282. 

3  The  Kim,  1.  British  and  Colonial  Prize  Cases,  p.  405,  at  p.  484. 


THE  STOWELL  CASE  LAW          79 

Declaration  of  London,  which  in  fact  only 
created  certain  presumptions  upon  which  the 
Court  might  act — that  is,  it  varied  the  rules  of 
evidence,  not  of  international  law.  The  un- 
modified Declaration  of  London  might  there- 
fore, it  is  obvious,  for  all  practical  purposes 
have  just  as  well  been  non-existent  in  August 
1914,  for  all  the  influence  it  has  had  on  the 
decisions  of  the  British  Prize  Court  in  London. 
It  may  be  observed,  though  it  is  somewhat 
outside  the  range  of  this  volume,  that  the 
Declaration  of  London  has,  on  the  other  hand, 
been  frequently  referred  to  in  the  French  Prize 
Court,  which,  as  previously  stated,  has  no 
definite  body  of  law  by  which  it  is  guided.  In 
accordance  with  the  usual  practice  in  French 
procedure,  the  judgment  commences  with  a 
preliminary  recital,  and  in  this,  in  many  in- 
stances, appropriate  articles  of  the  Declaration 
are  enumerated.  Unquestionably  as  an  addi- 
tion to  French  prize  law,  the  general  state  of 
which  was  described  on  an  earlier  page,  the 
Declaration  of  London  has  been  of  value,  and 
may  now  be  regarded  as  containing  many  of 
the  principles  of  that  law,  but,  as  the  reader 
will  by  this  time  have  realized,  the  state  of  the 
English  and  French  prize  laws  in  August  1914 
was  entirely  different. 


CHAPTER  VII 

THE   STOWELL   CASE   LAW   IN   THE   GREAT 
WAR 

FROM  the  Declaration  of  London  we  must 
turn  to  the  last  phase  in  this  impression  of 
the  judicial  work  of  Lord  Stowell  in  the  Prize 
Court. 

When  war  was  declared  on  August  4,  1914, 
by  Great  Britain  against  Germany,  it  was 
but  a  year  short  of  a  century  since  the  second 
Treaty  of  Paris,  when  Lord  Stowell's  judicial 
work  in  the  Prize  Court  came  to  an  end. 
One  need  not  emphasize  the  differences  which 
exist  between  maritime  trade  and  international 
commerce  at  the  beginning  of  the  twentieth 
and  of  the  nineteenth  century.  Nor  is  it 
necessary  to  dwell  on  the  changes  which  have 
occurred  in  English  law  and  procedure,  or  on 
the  characteristics  of  modern  English  judica- 
ture as  compared  to  those  of  a  century  ago. 
Unquestionably,  however,  there  could  be  no 
sharper  test  of  the  value  of  Stowell's  work 
than  the  manner  in  which  it  responded  to  the 

80 


THE  STOWELL  CASE  LAW          81 

examination  of  advocates  and  of  the  Bench 
during  the  present  war.  Through  this  it  has 
passed  with  increased  reputation,  and  it 
remains  still  the  basis  of  English  prize  law, 
with  its  value  enhanced  in  consequence  of 
the  respect  which  has  attached  to  a  decision 
of  Stowell  which  in  any  way  confirms  or 
elucidates  a  judgment  either  of  the  Prize 
Court  or  of  the  Privy  Council.  It  is  further 
a  tribute  to  Lord  StowelPs  sagacity,  and  to 
the  form  in  which  his  decisions  were  conveyed, 
that  they  have  been  applicable  to  changed 
mercantile  conditions.  His  judgments  keep 
pace  with  us,  they  are  archaic  neither  in  reason-  ' 
ing  nor  in  manner,  they  are,  in  fact,  modern 
because  they  are  true. 

As  this  is  not  a  treatise  on  prize  law  it  is 
necessary  only  to  examine  in  a  few  instances 
the  relations  between  StowelPs  decisions  and 
those  of  the  Prize  Court  in  the  present  war. 
In  1804,  for  example,  Stowell  laid  down  an 
important  and  far-reaching  principle — that  the 
Prize  Court  would  not  recognize  liens  on  an  \ 
enemy  vessel,  and  that  consequently  in  the 
case  before  him  the  holder  of  a  bottomry 
bond  had  no  right  to  claim  in  the  Prize  Court 
against  the  proceeds  of  a  captured  vessel.1 
Bottomry  bonds  in  the  eighteenth  century 

1  The  Tobago,  5.  C.  Robinson,  p.  218  ;    1,  English  Prize  Cases, 
p.  456. 

G 


82  LORD  STOWELL 

and  in  the  early  years  of  the  nineteenth  century 
were  documents  of  much  maritime  importance 
— they  were  charges  on  a  ship,  and  the  holder 
of  them  had  a  lien  or  claim  on  the  vessel  for 
the  sum  of  money  which  he  had  advanced. 
Under  the  name  of  respondentia  bonds  they 
were  charges  on  cargoes.  To-day  one  and 
the  other  have  almost  disappeared,  for  com- 
munication over  all  parts  of  the  globe  is  so 
rapid  that  quicker  methods  have  been  reached 
for  advancing  money  to  the  masters  of  vessels 
in  distant  parts  of  the  world. 

In  connection  with  cargoes  modern  com- 
merce has  developed  a  far-reaching  system 
of  advances  by  bankers  on  the  security  of 
bills  of  lading.  Cargoes  are  mortgaged  to 
bankers,  who  thus  finance  sellers  long  before 
the  cargo  is  actually  delivered ;  millions  are, 
in  fact,  lent  on  this  form  of  security.  The 
object  of  these  transactions  differs  entirely 
from  that  of  the  old-fashioned  advance  on 
bottomry  or  respondentia  bonds  to  a  master 
of  a  ship  who  is  without  money  in  a  distant 
part  of  the  world.  But  the  result  of  the 
transaction  is  the  same  :  it  creates  a  creditor's 
lien  on  the  cargo.  In  these  circumstances 
Lord  StowelPs  principle  was  sharply  tested. 
In  the  case  of  the  Odessa  *  the  claimants  were 
bankers  who  had  accepted  bills  of  exchange 

1  1.  British  and  Colonial  Prize  Cases,  pp.  163,  554, 


THE  STOWELL  CASE  LAW          83 

in  favour  of  the  sellers  against  the  cargo,  and 
received  the  bills  of  lading  as  security  for  the 
acceptances  and  for  the  money  paid  under 
them.  This  was  evidently  the  kind  of  case 
in  which  decisions  so  mature  as  the  Tobago, 
and  of  the  Marianna,1  which  followed  the 
earlier  case,  were  certain  to  be  attacked  as 
inconsistent  with  modern  commercial  practice. 
The  first  words  of  the  counsel  for  the  claimants 
were  on  these  very  lines  :  "  This  case  is  of 
the  first  importance,  as  the  bill  of  exchange 
on  London  is  the  general  means  all  over  the 
world  of  financing  the  owner  of  any  cargo 
during  its  carriage ;  and  bankers  would  have 
been  in  consternation  if  they  had  thought 
that  in  case  of  war  their  security  would  be 
gone."  In  spite  of  this  protest  the  doctrine 
laid  down  by  Lord  Stowell  was  upheld  by  Sir 
Samuel  Evans  in  the  Prize  Court  and  on  appeal 
by  the  Privy  Council.  This  tribunal  more 
especially  boldly  based  its  decision  on  Lord 
StowelPs  judgments  in  the  Tobago  and  the 
Marianna.  "  The  case  of  the  Tobago  is  in 
point,"  said  Lord  Mersey  in  the  judgment 
which  he  delivered  for  the  Court.  Lord 
Stowell,  after  observing  that  the  contract 
of  bottomry  was  one  which  the  Admiralty 
Court  regarded  with  great  attention  and 
tenderness,  went  on  to  ask :  "  But  can  the 

1  6.  C.  Robinson,  p.  24  ;  1.  English  Prize  Cases,  518. 


84  LORD  STOWELL 

Court  recognise  bonds  of  this  kind  as  titles 
of  property  so  as  to  give  persons  a  right  to 
stand  in  judgment  and  demand  restitution  of 
such  interests  in  a  Court  of  Prize  ?  "  and  he 
states  that  it  had  never  been  the  practice  to 
do  so.  He  points  out  that  a  bottomry  bond 
works  no  change  of  property  in  the  vessel, 
and  says  :  "if  there  is  no  change  of  property 
there  can  be  no  change  of  national  character. 
Those  lending  money  on  such  security  take 
this  security  subject  to  all  chances  incident 
to  it,  and  amongst  the  rest,  the  chances  of 
war."  Throughout  the  case  the  principles 
and  their  general  application,  as  they  are 
found  in  the  judgments  of  Lord  Stowell,  were 
approved  and  the  law  as  formulated  by  him 
was  agreed  to  by  Sir  Samuel  Evans  and  the 
Privy  Council. 

While  these  present-day  decisions  are  a 
remarkable  tribute  to  the  permanent  value 
of  Sto well's  judgments,  one  does  not  feel  so 
sure  that,  under  the  altered  circumstances  of 
the  age,  he  might  not  now  have  found  some 
ground  by  which  to  limit  the  effect  of  his 
previous  judgments.  It  is  common  knowledge 
that  in  the  present  war  an  official  Committee 
has  investigated  claims,  which  have  been 
rejected  by  the  Prize  Court,  of  those  persons 
or  firms,  British  or  neutral,  who  have  advanced 
money  on  enemy  goods  in  the  ordinary  course 


THE  STOWELL  CASE  LAW          85 

of  business,  that  it  has  recognized  in  certain 
cases  their  claim,  and  that  orders  have  been 
made  by  it  for  the  payment  of  such  claim  out 
of  the  prize  fund.  It  is  not  wholly  satisfactory 
that — as  the  case  is — the  decision  of  the 
Prize  Court  should  be  considered  as  legally 
sound  but  indefensible  from  the  point  of  view 
of  commercial  equity.  In  Stowell's  time  in 
most  cases  of  capture  the  proceeds  passed  into 
the  pockets  of  the  captors,  and  it  was  largely 
to  protect  the  captors,  whose  claim  would  have 
been  defeated  by  the  recognition  of  liens,  that 
Stowell  decided  against  such  claims.  But 
to-day  the  proceeds  of  prize — both  of  captures 
at  sea  and  of  Droits  of  Admiralty — fall  into 
the  Exchequer.  One  day  therefore  the  Crown 
successfully  opposes  claims  in  the  Prize  Court, 
on  another  outside  the  Court  it  amicably 
recognizes  them. 

The  continuity  of  British  prize  law  as 
formulated  by  Stowell  was,  at  any  rate,  sus- 
tained, and  the  flexibility  and  adaptability 
of  the  English  juridical  system  was  once  more 
demonstrated. 

This  is  but  one  example  of  the  vitality  of 
Stowell's  work,  which  was  again  shown  in  the 
Roumanian,1  in  which  case  his  decisions  were 
relied  upon  both  by  Sir  Samuel  Evans  and 
by  the  Privy  Council.  One  of  the  main 

1  1.  British  and  Colonial  Prize.  Cases,  pp.  75,  536. 


86  LORD  STOWELL 

questions  in  this  case  was  whether  oil,  which 
was  admittedly  enemy  property  and  which 
had  been  landed  at  the  instance  of  the  Customs 
authorities,  was  the  subject  of  prize,  since  it 
had  not  been  seized  at  sea  but  when  in  tanks 
on  land.  Here  again  the  luminous  statements 
of  Stowell  in  the  Two  Friends l  and  the  Progress 2 
were  followed.  "  In  neither  case,"  to  use 
Lord  StowelPs  expression,  "  was  the  con- 
/  tinuity  of  the  goods  landed  as  cargo  in  any 
way  interrupted."  It  was  thus  in  fact  a 
maritime  seizure. 

It  has  now  been  shown  how,  in  two  cases, 
in  which  questions  of  prize  law  widely  apart 
were  raised,  the  authority  of  Lord  Stowell 
was  regarded  as  of  preponderating  weight. 
A  third  instance,3  which  differs  altogether 
from  those  previously  selected,  may  be  given 
in  which  the  point  was  whether  or  not  Russian 
shipowners,  subjects  of  an  allied  Power,  were 
entitled  to  claim  from  the  Crown,  as  captors, 
freight  upon  the  enemy  cargo  which  was 
carried  in  their  ship  under  a  charter  with  a 
German  firm.  Sir  Samuel  Evans  held  that 
the  reasons  against  this  claim  could  not  be 
more  clearly  enunciated  than  by  a  quotation 
from  a  judgment  of  Lord  Stowell,  it  is  grounded 
on  broad  principles  which  could  be  applied 

1  I.C.  Robinson,  p.  271  ;  1.  English  Prize  Cases,  p.  130. 

2  Edwards,  p.  210. 
3  The  Parchim,  1.  British  and  Colonial  Prize  Cases,  p.  579. 


THE  STOWELL  CASE  LAW          87 

to  facts  as  they  arose.  This  decision  he  in 
fact  incorporated  with  and  made  the  basis  of 
his  own  decision.  "  The  general  principle," 
he  said,  "  is  nowhere  better  stated  than  by 
Lord  Stowell  in  the  Neptunus  :  c  It  is  well 
known  that  a  declaration  of  hostility  naturally 
carries  with  it  an  interdiction  of  all  commercial 
intercourse  ;  it  leaves  the  belligerent  countries 
in  a  state  that  is  inconsistent  with  the  relations 
of  commerce.  This  is  the  natural  result  of  a 
state  of  war,  and  it  is  by  no  means  necessary 
that  there  should  be  a  special  interdiction  of 
commerce  to  produce  this  effect.  At  the 
same  time  it  has  happened,  since  the  world 
has  grown  more  commercial,  that  a  practice 
has  crept  in  of  admitting  particular  relaxa- 
tions ;  and  if  one  State  only  is  at  war,  no 
injury  is  committed  to  any  other  State.  It  is 
of  no  importance  to  other  nations  how  much 
a  single  belligerent  chooses  to  weaken  and 
dilute  his  own  rights.  But  it  is  otherwise 
when  allied  nations  are  pursuing  a  common 
cause  against  a  common  enemy.  Between 
them  it  must  be  taken  as  an  implied,  if  not 
an  express  contract,  that  one  State  shall  not 
do  anything  to  defeat  the  general  object.  If 
one  State  admits  its  subjects  to  carry  on  an 
uninterrupted  trade  with  the  enemy,  the  con- 
sequence may  be  that  it  will  supply  that  aid 
and  comfort  to  the  enemy,  especially  if  it 


88  LORD  STOWELL 

is  an  enemy  depending,  like  Holland,  very 
materially  on  the  resources  of  foreign  commerce, 
which  may  be  very  injurious  to  the  prosecu- 
tion of  the  common  cause  and  the  interests 
of  its  ally.  It  should  seem  that  it  is  not 
enough,  therefore,  to  say  that  the  one  State 
has  allowed  this  practice  to  its  own  subjects ; 
it  should  appear  to  be  at  least  desirable  that 
it  could  be  shown  that  either  the  practice  is 
of  such  a  nature  as  can  in  no  manner  interfere 
with  the  common  operations,  or  that  it  has 
the  allowance  of  the  confederate  State.' " 

Further  instances  in  the  same  sense  might 
be  multiplied ;  it  is  sufficient  to  give  one  in 
addition  to  those  already  collected.  In  this 
the  point  of  law  was  short,  namely,  whether 
the  Crown  as  captor  of  a  ship  was  entitled  to 
freight.1  Here  again  an  extract  from  the 
judgment  of  Sir  Samuel  Evans  without  com- 
ment will  suffice :  "  The  Crown  claim  to  have 
a  lien  for  the  freight  alleged  to  be  payable  in 
respect  of  the  portion  of  the  cargo  released, 
and  to  have  it  paid  before  the  release.  The 
argument  on  behalf  of  the  Crown  is  that  the 
shipowners  are,  by  the  German  commercial 
law,  entitled  to  some  freight  in  respect  of  this 
released  cargo,  although  it  was  not,  and 
cannot  be,  delivered  in  Germany  at  the  port 
of  destination,  and  that  as  captors  they  are 

1  The  Roland,  1.  British  and  Colonial  Prize  Cases,  p.  188. 


THE  STOWELL  CASE  LAW          89 

entitled  to  what  the  ship  has  earned  as  well 
as  to  the  ship  herself."  This  sounds  quite 
logical,  but  the  practice  of  Prize  Courts  (which 
has  to  deal  with  multifarious  business  affairs) 
shows  that,  although  substantial  justice  is 
done,  the  results  of  what  strict  logic  may 
appear  to  involve  cannot  always  be  attained. 
The  old  rule  as  to  whether  captors  of  an  enemy 
vessel  were  also  entitled  to  freight  was  quite 
clear. 

Whenever  a  captor  brought  goods  to  the 
port  of  actual  destination  according  to  the 
intent  of  the  contracting  parties,  he  was  held 
entitled  to  the  freight,  on  the  ground  that 
the  contract  had  been  fulfilled,  but  in  all  other 
cases  he  was  held  not  entitled  to  freight, 
although  the  ship  might  have  performed  a 
very  large  part  of  her  intended  voyage. 

The  rule  was  laid  down  in  the  Fortuna 
(1802)  (4.  C.  Robinson  278  ;  1.  Eng.  P.C.  392) 
and  the  Vrouw  Anna  Catharina  (1806)  (6.  C. 
Rob.  67  ;  1.  Eng.  P.C.  552) ;  and  some  excep- 
tions which  emphasized  the  rule  were  dealt 
with  in  the  Diana  (1803)  (5.  C.  Rob.  67;  1. 
Eng.  P.C.  424)  and  the  Vrouw  Henrietta 
(reported  in  a  note  to  the  Diana  at  p.  75,  and 
in  1.  Eng.  P.C.  at  p.  427). 

No  examples  than  those  which  have  just 
been  given  could  more  clearly  illustrate  the 
fundamental  position  which  Lord  Stowell's 


90  LORD  STOWELL 

decisions  occupy  at  the  present  day  not  only 
in  British  prize  law  but  in  that  of  the  United 
States.  In  England  they  take  the  place 
which  Government  regulations  hold  in  con- 
tinental Courts,  as,  for  example,  in  German 
prize  law.  "  Since  it  had  to  be  decided  that 
the  entire  cargo  of  the  vessel  was  subject 
to  seizure  as  conditional  contraband  and  to 
confiscation  (Prize  Order  No.  42),  the  vessel 
was  consequently  also  liable  to  be  held  up 
according  to  Prize  Order  39  and  confiscated 
as  per  Prize  Order  No.  41,  Part  2."  1  This 
extract  from  a  judgment  of  the  Hamburg 
Prize  Court  shows  how  administrative  decrees 
are  used  in  the  German  Prize  Courts.  Whether 
they  are  in  accordance  with  the  provisions  of 
international  law  is  immaterial  to  the  tribunal ; 
what  is  written  is  accepted  as  law,  whether 
sound  or  unsound,  whether  just  or  unjust. 

The  various  results,  political,  economical, 
and  legal,  of  the  great  war  of  the  twentieth 
century  will  hereafter  be  chronicled  by  future 
historians.  To  the  critical  observer  of  English 
jurisprudence  and  of  international  law,  it  is, 
however,  already  sufficiently  clear  that  the 
great  achievement  of  Stowell,  the  several 
characteristics  of  which  have  been  considered 
in  the  preceding  pages,  has,  during  the  course 

1  The    Cocos,    Hamburg    Prize    Court,    December    11,    1915  ; 
Lloyd's  List  Reports,  January  26,  1916. 


THE  STOWELL  CASE  LAW          91 

of  the  war,  been  at  once  tested  and  justified, 
and  that  it  remains  fixed  more  firmly  than 
ever  as  the  corner  -  stone  of  one  branch  of 
British  jurisprudence. 

Many  reasons  will  have  occurred  to  the 
reader  for  this  result ;  they  are,  however,  most 
clearly  understood  if  we  apply  to  the  Stowell 
case  law  the  test  formulated  by  an  eminent 
English  jurist  of  our  own  age,  that  is  to  say, 
a  modern  test.  "  From  the  Peace  of  West- 
phalia," wrote  Professor  Westlake,  "  to  the 
present  day  the  great  desideratum  of  inter- 
national law  has  been  the  union  of  reason  and 
custom  in  a  satisfactory  body  of  rules,  satis- 
factory in  the  sense  in  which  alone  the  term 
can  be  applied  to  arrangements  made  or 
accepted  by  man,  as  supplying  a  system 
capable  of  being  put  in  practice  under  actual 
conditions  and  fairly  meeting  the  needs 
which  arise  from  them,  without  excluding  im- 
provement, or  modification  to  suit  changed 
conditions." l  The  Stowell  decisions  are  "  a 
satisfactory  body  of  rules,"  they  are  "  a  system 
capable  of  being  put  in  practice  under  actual 
conditions,"  they  do  "  fairly  meet  the  need  " 
which  arises  from  such  conditions,  and  they 
do  not  exclude  either  improvement  or  modifica- 
tion under  changed  conditions. 

]  The  Collected  Papers  of  John  Westlake  on  Public  International 
Law,  p.  66. 


92  LORD  STOWELL 

The  preceding  review  of  Stowell  as  a  man 
and  as  a  judge  necessarily  concludes  with 
this  note  of  the  present  authoritative  position 
of  the  Stowell  case  law.  It  suggests,  however, 
one  or  two  further  considerations.  It  is  clear 
that  an  international  Court  of  Appeal  for 
prize  cases  is  outside  the  range  of  possibility. 
The  treatment  of  ships  or  goods  taken  as 
prize  is  admittedly  a  matter  for  national 
action  in  the  prize  tribunals  of  the  belligerent 
powers.  In  England  that  action  is  based  on 
a  well  established  body  of  law  administered 
in  a  judicial  manner — more  judicially  than  in 
any  other  European  country,  because  the 
Court  possesses  reasoned  and  recorded  pre- 
cedents to  guide  it,  and  pronounces  reasoned 
and  recorded  judgments.  Under  such  circum- 
stances no  necessity  exists  for  an  appeal  from 
a  national  to  a  non-national  Court,  an  appeal 
which  the  experience  of  the  present  war  shows 
would,  even  assuming  the  procedure  to  be 
organized,  cause  infinite  delay  and  immense 
practical  inconvenience  both  to  neutral 
subjects  and  to  the  British  Government. 
Apart,  however,  from  this  important  considera- 
tion, it  is  certain  that,  since  the  Stowell  case 
law,  as  administered  and  applied  by  Sir  Samuel 
Evans  and  by  the  Judicial  Committee  of  the 
Privy  Council,  has  been  found  to  form  an 
admirable  basis  for  many  modern  decisions, 


THE  STOWELL  CASE  LAW          93 

no  administration  could  now  venture  to  super- 
sede it,  and  such  supersession  is  a  condition 
precedent  to  the  work  of  an  international 
Court  of  Appeal.  An  assimilation  of  the  prize 
law  of  other  European  countries  to  that  of 
Great  Britain  can  in  the  future  only  be 
obtained  by  the  international  recognition,  as 
expressions  of  the  law  of  nations,  of  particular 
reasoned  British  precedents,  which  have  been 
increased  in  value  and  number  since  the  out- 
break of  the  war  in  August  1914.  This  is  a 
course  which  can  scarcely  be  regarded  as 
probable  unless  it  can  be  accomplished  by  a 
diplomatic  arrangement.  Be  that  as  it  may, 
it  is  unquestionable,  from  the  experience  of  the 
present  war,  that  this  country  will  never  consent 
to  part  with  a  body  of  law  which  has  been  so 
well  tested  as  that  which  Stowell  may  be  said, 
for  all  practical  purposes,  to  have  created,  and 
which  has  continued  to  be  applied  impartially 
in  the  same  spirit  of  justice  as  animated  the 
famous  jurist  who  presided  over  the  British 
Prize  Court  at  the  end  of  the  eighteenth 
and  at  the  commencement  of  the  nineteenth 
centuries. 


CHAPTER  VIII 

STOWELL  AS   JUDGE   OF  THE   HIGH   COURT 
OF   ADMIRALTY 

THIS  book  is  in  the  main  concerned  to  give  an 
impression  of  the  personality  of  Stowell,  and  to 
reduce  into  some  form  the  effect  and  the  manner 
of  his  work  as  judge  of  the  English  Prize  Court. 
It  would,  however,  leave  an  inadequate  idea 
of  Stowell's  wide  judicial  powers  on  the  mind 
of  the  reader  if  a  short  space  were  not  allotted 
to  his  achievements  as  an  Admiralty  judge. 
Though  the  Instance  or  civil  jurisdiction  of 
the  Admiralty  Court  is  primarily  of  limited 
and  technical  interest,  it  possesses  also  some 
international  importance,  for  the  Admiralty 
Court  adjudicates  on  disputes  between  ship- 
owners, underwriters,  and  mariners  of  all 
nations,  and  in  mercantile  estimation  it  stands 
higher  than  any  other  similar  tribunal  in  the 
world. 

Just  as  Stowell's  long  tenure  of  office  as 
a  judge  of  the  Prize  Court  enabled  him  to  im- 
press his  individuality  on  English  prize  law, 

94 


STOWELL  AS  JUDGE  95 

so  the  same  cause  gave  him  the  opportunity 
of  enunciating  many  important  principles  of 
purely  maritime  law  with  a  breadth  and 
lucidity  which  made  them  basic  factors  in  the 
further  development  of  British  maritime  law. 
Some  only  of  these  great  judgments  can  be 
referred  to  in  these  pages,  but  a  few  illustrative 
examples  will  establish  the  place  which  Stowell 
holds  in  the  development  of  English  maritime 
law. 

It  is  one  thing  to  decide  a  particular  point, 
it  is  another  to  explain  the  principles  on  which 
the  decision  rests,  and  to  apply  them  to  facts 
of  the  case  under  discussion,  so  that  the  latter 
may  serve  as  an  illustration  of  an  abstract 
proposition.  It  was  this  rare  gift  which  Lord 
Stowell  possessed,  and  it  is  conspicuous  when 
some  of  his  most  remarkable  judgments  are 
examined.  It  would  not  be  easy  to  find  one 
which  better  serves  as  an  example  than  the 
decision  in  1801,  in  the  case  of  the  Gratitudine.1 
The  result  of  that  judgment  was  the  creation 
of  the  rule  of  law  that  the  master  of  a  vessel 
in  a  foreign  port  has  power  to  bind  the  cargo 
on  board  by  a  respondentia  bond,  in  order  to 
obtain  money  to  enable  the  vessel  to  prosecute 
her  voyage.  That  rule  has  never  since  been 
questioned,  and  until  steam,  telegraphs,  and 

1  S.C.Robinson,  p.  240.  Some  of  these  examples  are  substantially 
reproduced  from  my  book,  The  Growth  of  English  Law,  London,  1913. 


96  LORD  STOWELL 

improved  postal  communication  lessened  in 
recent  years  the  necessity  for  obtaining  money 
by  the  hypothecation  of  ships  and  cargo,  it 
was  one  of  wide  commercial  importance.  The 
legal  power  of  the  master  to  enter  into  a  bond 
depended  on  his  relationship  to  the  owners  of 
the  cargo,  and,  therefore,  Lord  Stowell  had,  in 
order  to  establish  a  rule  upon  the  point,  to 
consider  when,  and  under  what  circumstances, 
the  master  of  a  vessel  became  by  virtue  of 
necessity  the  agent  for  the  owners  of  the  cargo. 
Having  established  as  a  legal  proposition  that 
in  cases  "  of  instant,  and  unforeseen,  and  un- 
provided necessity,  the  character  of  an  agent 
is  forced  upon  him,  not  by  the  immediate  act 
and  appointment  of  the  owner,  but  of  the 
general  policy  of  the  law,"  and  having  illus- 
trated the  rule  by  examples,  Lord  Stowell  then 
applied  it  to  the  circumstances  under  which 
it  may  be  necessary  to  borrow  money,  not  only 
on  the  security  of  ship  and  freight,  but  also 
on  that  of  the  cargo.  Satisfied  as  to  principle, 
the  judge  examined  the  authorities  to  discover 
what  light  might  be  thrown  by  them  on  the 
subject.  These  authorities  were  not  only  dicta 
to  be  found  in  English  law,  but  the  mediaeval 
codes,  which  have  been  preserved  to  modern 
times.  The  examination  completed,  Lord 
Stowell  proceeded  to  consider  whether  the 
situation  of  the  master  was  such  in  the  case 


STOWELL  AS  JUDGE  97 

before  him  as  to  authorize  the  exercise  of  this 
power.  This  particular  case  illustrates  very 
well  the  peculiar  and  unique  place  which 
Lord  Stowell  holds  in  the  history  of  English 
mercantile  law  as  the  formulator  and  the 
applier  of  legal  principles.  At  the  time  of  this 
judgment  there  was  no  reasoned  decision  on 
this  question,  one,  as  Stowell  said,  of  extreme 
importance.  Certainly,  as  he  also  pointed  out, 
there  existed  a  mercantile  practice  by  which 
bonds  given  on  the  security  of  the  cargo  were 
regarded  as  valid,  and  there  were  instances 
of  legal  proceedings  on  such  bonds.  But  the 
basis  of  this  validity  had  never  previously 
been  judicially  stated,  so  that  until  the  decision 
in  the  Gratitudine  it  could  not  be  said  that 
there  was  any  denned,  precise,  and  reasoned 
enunciation  of  the  legal  foundation  of  a  rule, 
which,  in  the  circumstances  of  the  eighteenth 
century,  was  of  such  far-reaching  importance 
to  the  mercantile  community. 

This  judgment  has  been  referred  to  because 
it  establishes  a  definite  proposition  of  maritime 
law:  it  enunciates  the  principle  on  which  it 
is  based,  and  it  has  ever  since  been  rightly 
regarded  as  an  admirable  and  conclusive  ex- 
position of  the  duty  of  a  ship-master  in  relation 
to  the  interests  of  the  owners  of  cargo  under 
extraordinary  circumstances.  As  such  its 

direct  and  indirect  influence  on  the  whole  body 

H 


98  LORD  STOWELL 

of  English  maritime  law  has  been  marked  and 
important. 

There  is  no  branch  of  law  of  which  the  basis 
is  now  more  thoroughly  fixed  than  that  of 
Salvage.     For  the  earliest  and  clearest  enuncia- 
tion of  many  of  its  principles  the  judgments 
of  Lord  Stowell  must  still  be  studied,  contain- 
ing as  they  do  the  principles  which  have  guided 
his  successors  and  have  established  the  law. 
For  example,  from  time  to  time  seamen  fall 
in    with    derelict   vessels.     When    they   bring 
such  ships  into  a  place  of  safety,  saving  them 
from  certain  loss,  they  are  clearly  entitled  to 
a  high  reward,  to  the  value,  indeed,  of  a  large 
proportion  of  the  property  saved,  though  not 
necessarily  to  one  half  of  its  value.     This  was 
the   effect  of  Lord   StowelPs  decision  in  the 
Aquila1    so    long    ago    as    1798,    a    decision 
which  from  that  time  forth  became  the  leading 
authority    on    this    particular    point.     Sixty- 
eight  years  afterwards,  in  the  case  of  the  True 
Blue,2  the    same   point   was   pressed   on   the 
attention   of    the    Court.      But    the   tribunal 
considered  that  it  was  sufficient  to  refer  to 
Lord  StowelPs  early  decision,  to  take  note  of 
his  research  into  the  older  authorities,  and  of 
his  conclusion  that  the  proper  mode  of  deciding 
the  question  of  the  amount  of  reward  to  be 

1  1.  C.  Robinson,  p.  37. 
2  Law  Reports  :  1.  Privy  Council,  p.  250. 


STOWELL  AS  JUDGE  99 

given  to  salvors  of  a  derelict  vessel  was  "  to 
consider  all  the  circumstances,  including  the 
value  of  the  property  salved,  and  the  risk  to 
the  property  of  the  salvors." 

Nor  would  it  be  easy  to  find  a  principle  of 
salvage  law  more  necessary  for  the  interests 
of  shipowners,  and  of  those  honestly  desirous 
of  rendering  assistance  to  vessels  in  distress 
on  reasonable  terms,  than  that  men  who  have 
taken  possession  of  a  ship  as  salvors  have  a 
legal  interest  in  her  which  cannot  be  divested 
until  an  adjudication  takes  place  in  a  court 
of  competent  authority.  A  second  band  of 
salvors  therefore  has  no  right  to  take  away 
from  men  who  are  doing  their  best  to  save  life 
and  property  the  opportunity  of  earning  a 
reward,  unless  it  be  apparent  that  these  efforts 
are  obviously  powerless  to  effect  their  object. 
Twice  Lord  Stowell  laid  down  these  rules  with 
emphasis  and  clearness  ;  so  that  from  the  date 
of  the  two  decisions — one  in  1809,  the  Maria,1 
and  the  other  in  1814,  the  Blenden  Hall 2 — this 
proposition  has  been  a  clear  rule  of  maritime 
conduct.  One  notes,  as  showing  the  character 
of  naval  life  at  the  time  of  these  cases,  that  in 
both  instances  those  whom  we  may  call  the 
piratical  salvors — the  second  band  who  tried 
to  dispossess  those  who  had  first  tendered  their 
services — were  officers  and  men  of  the  Royal 

1  Edwards,  p.  177.  2  1.  Dodson,  p.  418. 


100  LORD  STOWELL 

Navy,  proving  that  sometimes,  at  the  beginning 
of  the  nineteenth  century,  the  wild  and  un- 
scrupulous daring  of  the  Elizabethan  seamen 
was  emulated  by  their  modern  successors. 

Leaving  this  subject,  though  the  various 
decisions  in  which  Lord  Stowell  built  up  the 
modern  law  of  salvage  are  far  from  exhausted, 
one  may  pass  on  to  his  judgment  on  the  question 
of  the  sailor's  lien  on  the  ship  for  wages.  The 
judgment  delivered  in  the  case  of  the  Neptune* 
in  1824,  stands  out  just  as  remarkably  as  the 
decision  in  that  of  the  Gratitudine,  expound- 
ing and  laying  down  as  it  does  a  principle  of 
maritime  law  of  vital  importance.  In  the  first 
place,  it  diminished  largely  the  effect  of  the  old 
maritime  rule  that  freight  is  the  mother  of 
wages,  confining  that  maxim  to  cases  where 
a  vessel  has  wholly  perished.  It  also,  while 
laying  down  the  principle  that  a  seaman  has  a 
lien  on  the  ship  on  which  he  has  served  to  the 
last  plank,  expanded  it,  so  that  while  it  gave 
him  this  privilege  it  prevented  him  from  be- 
coming entitled  to  any  reward  as  a  salvor. 
Lord  Stowell  viewed  the  matter  from  no  narrow 
standpoint,  and  he  decided  the  first  point  on 
the  ground  that  "  private  justice  and  public 
utility  range  themselves  decidedly  on  that 
side  of  the  question  which  sustains  the  claim 
of  the  mariner."  To  have  held,  however,  that 

1  1.  Haggard,  p.  227. 


STOWELL  AS  JUDGE  101 

a  crew  bound  to  do  their  utmost  in  the  service 
of  the  owner  if  the  ship  is  in  peril,  should  be 
able  to  assume  the  character  of  salvors,  so  that 
in  time  of  danger  they  should  be  seeking  for 
extra  remuneration,  would  obviously  have 
dealt  a  blow  to  the  sense  of  duty  of  seamen, 
and  would  have  given  opportunities  for  gross 
frauds  on  owners  of  vessels  by  unscrupulous 
officers  and  crews. 

At  the  present  time  the  increase  of  maritime 
commerce  and  of  the  size  of  vessels  has  very 
greatly  increased  the  litigation  arising  out  of 
collisions  at  sea  and  in  port.  The  decision  of 
such  cases  depends  for  the  most  part  mainly 
on  facts,  and  it  has  to  some  extent  obscured 
the  value  of  Stowell's  work  as  an  Admiralty 
judge.  But  the  few  decisions  on  general  mari- 
time law,  which  have  been  explained  in  the 
immediately  preceding  pages,  have  sufficiently 
indicated  and  illustrated  the  historical  place 
which  Stowell  has  obtained,  and  will  continue 
to  occupy,  in  the  history  of  English  maritime 
law. 


APPENDIX  I 

REPORTS   WHICH   CONTAIN   LORD    STOWELI/S 
JUDGMENTS,  AND   NOTE    ON   SOME   MS.    NOTES   BY  HIM 

Prize  and  Admiralty  Judgments 

Reports  of  Cases  argued  and  determined  in  the 
High  Court  of  Admiralty,  commencing  with 
the  Judgments  of  the  Right  Hon.  Sir  William 
Scott,  Michaelmas  Term,  1798.  By  Chr. 
Robinson,  LL.D.  In  six  volumes.  1798-1808. 

Reports  of  Cases  argued  and  determined  in  the 
High  Court  of  Admiralty,  commencing  with 
the  Judgments  of  the  Right  Hon.  Sir  William 
Scott,  Easter  Term,  1808-1812.  By  Thomas 
Edwards,  LL.D. 

Reports  of  Cases  argued  and  determined  in  the 
High  Court  of  Admiralty,  commencing  with 
the  Judgments  of  the  Right  Hon.  Sir  William 
Scott,  Trinity  Term,  1811.  By  John  Dodson, 
LL.D.  In  two  volumes.  1811-1822. 

Reports  of  Cases  argued  and  determined  in  the 
High  Court  of  Admiralty  during  the  time  of 
the  Right  Hon.  Lord  Stowell.  By  John 
Haggard,  LL.D.,  Advocate.  Vol.  I.,  1822-1825, 
and  Vol.  II.  to  p.  144. 

Haggard,  Vol.  II.,  contains  also  Lord  Stowell's  judg- 
ment in  the  case  of  the  Slave,  Grace.  This  was 
an  appeal  from  the  Vice -Admiralty  Court  of 
Antigua,  and  raised  the  question  whether  a 
103 


104  LORD  STOWELL 

slave,  after  residing  in  England  for  a  year,  lost 
her  freedom  on  returning  to  the  place  of  her 
birth  and  servitude,  which  question  Lord  Stowell 
decided  in  the  affirmative — it  has  always  been 
regarded  as  a  decision  of  much  importance. 

Ecclesiastical  Judgments 

Reports  of  Cases  in  the  Consistory  Court  of  London, 
containing  the  Judgments  of  the  Right  Hon. 
Sir  William  Scott.  By  John  Haggard,  LL.D., 
Advocate.  In  two  volumes. 


Note  on  certain  MS.  Notes  by  Lord  Stowell 

Two  MS.  volumes  of  Lord  Stowell' s  Notes  are  preserved 
in  the  Admiralty  Registry.  One  is  headed  "  Wm. 
Rothery.  This  contains  a  copy  taken  from  an 
original  book  lent  to  me  by  Lord  Stowell  for  that 
purpose,  all  in  his  own  handwriting."  These 
notes  are  arranged  alphabetically  and  are  on 
subjects  connected  with  Admiralty  and  Prize 
Law.  The  other  volume  is  headed  "  Presented 
to  me  by  Lord  Stowell,  Judge  of  the  Admiralty. 
Wm.  Rothery."  This  volume  contains  opinions 
chiefly  on  ecclesiastical  subjects,  but  at  the  end 
are  twenty -nine  pages  of  notes  of  prize  decisions 
from  1710  to  1749.  This  volume  is  entirely  in 
Lord  Stowell' s  handwriting. 


APPENDIX  II 

CONTRABAND    AND   BLOCKADE 

Extracts  from  the  Memorandum  of  the  British 

Government  of  April  24,  1916.     [Cd.  8234.] 

See  ante,  p.  59. 


18.  THE  next  passage  in  the  United  States  note 
(Paragraph  14)  relates  to  the  principle  of  non- 
interference with  goods  intended  to  become  in- 
corporated in  the  mass  of  merchandise  for  sale  in 
a  neutral  country,  or,  as  it  is  more  commonly  known, 
with  goods  intended  to  be  incorporated  in  the 
"  common  stock "  of  the  country.  The  United 
States  Government  urge  with  some  force  that  trade 
statistics  are  not  by  themselves  conclusive  in  estab- 
lishing an  enemy  destination,  and  that  such  statistics 
require  careful  scrutiny.  On  the  other  hand,  the 
mere  fact  that  goods,  no  matter  of  what  description 
or  in  what  quantities,  are  ostensibly  destined  to 
form  part  of  the  common  stock  of  a  neutral  country, 
cannot  be  regarded  as  sufficient  evidence  to  prove 
their  innocence  or  to  justify  the  assertion  that  any 
attempt  to  raise  questions  as  to  their  ulterior  destina- 
tion is  unwarranted  and  inquisitorial.  It  is  a 
matter  of  common  knowledge  that  large  quantities 
of  supplies  have  since  the  war  broke  out  passed  to 
our  enemy  through  neutral  ports.  It  was  pointed 

105 


106  LORD  STOWELL 

out  in  Sir  E.  Grey's  note  of  July  23,  1915,  that  it 
would  be  mere  affectation  to  regard  some  of  those 
ports  as  offering  facilities  only  for  the  commerce  of 
the  neutral  country  in  which  they  are  situated. 
They  have,  in  fact,  been  the  main  avenues  through 
which  supplies  have  reached  the  enemy  from  all 
parts  of  the  world.  In  the  case  of  goods  consigned 
to  these  ports,  the  ships'  papers  convey  no  sugges- 
tion as  to  their  ultimate  destination,  and  every 
device  which  ingenuity  can  suggest,  or  which  can 
be  contrived  by  able  and  unscrupulous  agents,  is 
resorted  to  for  the  purpose  of  giving  to  carefully 
organised  arrangements  for  supplying  the  enemy 
the  appearance  of  genuine  transactions  with  a 
neutral  country.  His  Majesty's  Government  can- 
not bring  themselves  to  believe  that  it  is  the  desire 
of  the  United  States  Government  that  traffic  of 
this  kind  should  be  allowed  to  proceed  without 
hindrance. 

19.  The  question  whether  goods  despatched  to  a 
neutral  port  were  intended  to  become  part  of  the 
mass  of  merchandise  for  sale  in  that  country  is  one 
of  fact.  Quite  apart  from  the  conclusions  suggested 
by  the  figures,  there  is  a  considerable  body  of  evidence 
that  many  of  the  goods  which  have  been  shipped  to 
neutral  ports  during  the  war  were  never  intended  to 
become  part  of  the  common  stock  of  that  country, 
but  were  ear-marked  from  the  beginning  for  re- 
export to  the  enemy  countries.  If  they  had  been 
intended  to  form  part  of  the  common  stock,  they 
would  have  been  available  for  use  in  that  country ; 
yet  at  one  time  in  the  early  days  of  the  Allies'  efforts 
to  intercept  all  the  commerce  of  the  enemy,  when 
they  found  it  necessary  to  hold  up  certain  cargoes 
of  cotton  on  their  way  to  Sweden,  it  transpired  that 
though  the  quays  and  the  warehouses  of  Gothenburg 
were  congested  with  cotton,  there  was  none  available 
for  the  use  of  the  spinners  in  Sweden.  .  .  . 


APPENDIX  II  107 

22.  Similarly  several  of  the  shipments  which  the 
Allied  naval  forces  are  now  obliged  to  intercept 
consist  of  goods  for  which  there  is  in  normal  circum- 
stances no  sale  in  the  importing  country,  and  it  has 
already  been  pointed  out  in  a  recent  decision  in  the 
British  Prize  Court  that  the  rule  about  incorporation 
in  the  common  stock  of  a  neutral  country  cannot 
apply  to  such  goods.  The  same  line  was  taken  in 
some  of  the  decisions  in  the  United  States  Prize 
Courts  during  the  Civil  War. 

In  the  presence  of  facts  such  as  those  indicated 
above,  the  United  States  Government  will,  it  is 
believed,  agree  with  His  Majesty's  Government  that 
no  belligerent  could  in  modern  times  submit  to  be 
bound  by  a  rule  that  no  goods  could  be  seized  unless 
they  were  accompanied  by  papers  which  established 
their  destination  to  an  enemy  country,  and  that 
all  detentions  of  ships  and  goods  must  uniformly 
be  based  on  proofs  obtained  at  the  time  of  seizure. 
To  press  any  such  theory  is  tantamount  to  asking 
that  all  trade  between  neutral  ports  shall  be  free, 
and  would  thus  render  nugatory  the  exercise  of  sea 
power  and  destroy  the  pressure  which  the  command 
of  the  sea  enables  the  Allies  to  impose  upon  their 
enemy. 


II 

32.  The  second  section  of  the  United  States  note 
(Paragraphs  16-24)  deals  with  the  validity  of  the 
measures  against  enemy  commerce  which  were  em- 
bodied in  the  British  Order  in  Council  of  the  llth  March 
1915,  and  in  the  French  Decree  of  the  13th  March, 
and  maintains  that  these  measures  are  invalid  because 
they  do  not  comply  with  the  rules  which  have  been 
gradually  evolved  in  the  past  for  regulating  a  blockade 
of  enemy  ports,  and  which  were  summarised  in 


108  LORD  STOWELL 

concrete  form  in  articles  1-21  of  the  Declaration  of 
London. 

33.  These  rules  can  only  be  applied  to  their  full 
extent  to  a  blockade  in  the  sense  of  the  term  as 
used  in  the  Declaration  of  London.    His  Majesty's 
Government  have  already  pointed  out  that  a  blockade 
which  was  limited  to  the  direct  traffic  with  enemy 
ports  would  in  this  case  have  but  little,   if    any, 
effect  on  enemy  commerce,  Germany  being  so  placed 
geographically   that   her   imports   and    exports   can 
pass  through  neutral  ports  of  access  as   easily  as 
through  her  own.     However,  with  the  spirit  of  the 
rules   His   Majesty's    Government   and   their   Allies 
have  loyally  complied  in  the  measures  they  have 
taken   to   intercept    German   imports    and    exports. 
Due  notice  has  been  given  by  the  Allies  of  the  measures 
they  have  taken,  and  goods  which  were  shipped  or 
contracted    for    before    the    announcement    of    the 
intention  of  the  Allies  to  detain  all  commerce  on  its 
way   to   or   from   the   enemy   countries   have   been 
treated    with    great    liberality.     The    objects    with 
which    the    usual    declaration    and    notification    of 
blockade  are  issued  have  therefore  been  fully  achieved. 
Again,  the  effectiveness  of  the  work  of  the  Allied 
fleets  under  the  orders  referred  to  is  shown  by  the 
small   number   of   vessels   which   escape  the   Allied 
patrols.     It  is  doubtful  whether  there  has  ever  been 
a  blockade  where  the  ships  which  slipped  through 
bore   so   small   a   proportion  to  those  which  were 
intercepted. 

34.  The  measures  taken  by  the  Allies  are  aimed 
at  preventing  commodities  of  any  kind  from  reaching 
or  leaving  Germany,  and  not  merely  at  preventing 
ships  from  reaching  or  leaving  German  ports.     His 
Majesty's  Government  do  not  feel,  therefore,   that 
the  rules  set  out  in  the  United  States  note  need  be 
discussed  in  detail.     The  basis  and  justification  of  the 
measures  which  the  Allies  have  taken  were  dealt  with 


APPENDIX  II  109 

at  length  in  Sir  E.  Grey's  note  of  the  23rd  July,1  and 
there  is  no  need  to  repeat  what  was  there  said.  It 
need  only  be  added  that  the  rules  applicable  to  a 
blockade  of  enemy  ports  are  strictly  followed  by  the 
Allies  in  cases  where  they  apply,  as,  for  instance, 
in  the  blockades  which  have  been  declared  of  the 
Turkish  coast  of  Asia  Minor  or  of  the  coast-line  of 
German  East  Africa. 

1  The  most  important  passage  in  the  note  of  July  23,  1915 
[Cd.  8233,  p.  13],  is  as  follows  : 

**  As  a  counterpoise  to  the  freedom  with  which  one  belligerent 
may  send  his  commerce  across  a  neutral  country  without  com- 
promising its  neutrality,  the  other  belligerent  may  fairly  claim  to 
intercept  such  commerce  before  it  has  reached,  or  after  it  has  left, 
the  neutral  State,  provided,  of  course,  that  he  can  establish  that 
the  commerce  with  which  he  interferes  is  the  commerce  of  his  enemy 
and  not  commerce  which  is  bona  fide  destined  for,  or  proceeding 
from,  the  neutral  State.  It  seems  accordingly  that,  if  it  be  re- 
cognised that  a  blockade  is  in  certain  cases  the  appropriate  method 
of  intercepting  the  trade  of  an  enemy  country,  and  if  the  blockade 
can  only  become  effective  by  extending  it  to  enemy  commerce 
passing  through  neutral  ports,  such  an  extension  is  defensible  and 
in  accordance  with  principles  which  have  met  with  general  accept- 
ance." 


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APPENDIX   IV 

DOCTORS'  COMMONS  IN  1598 

"  On  the  west  side  of  this  streete,  is  one  other 
great  house  builded  of  stone  which  belongeth  to 
Powles  Church  and  was  sometime  letten  to  the 
Blunts  Lordes  Mount  joy,  but  of  latter  time  to  a 
College  in  Cambridge,  and  from  them  to  the  Doctors 
of  the  Civill  Law  and  Arches  who  keep  a  commons 
there,  and  many  of  them  being  there  lodged  it  is 
called  the  Doctors  Commons." — Stowe,  Survey  of 
London,  Ed.  1908,  vol.  ii.  p.  17. 


113 


INDEX 


Admiralty,  High  Court  of,  17, 
•21,  29,  88,  94 

Advocates  of  Doctors'  Com- 
mons, 10,  84 

I  {agnail,  John,  of  Erleigh 
Court,  25 

Hlockade,  Stowell  on  law  as 
to,  58-59  ;  British  Govern- 
ment on,  107 

Boswell,  James,  10,  11 

Chambers,  Sir  11.,  friend  of 
Stowell,  8 

Clul),  I  lie  Literary,  Stowell's 
election  to,  9 

Continuous  voyage,  doctrine 
of,  50-59 

Contraband,  Stowell  on  law 
of,  01-66  ;  British  Govern- 
ment on,  105 

Declaration  of  London,  72-79 ; 

cause  of,  71  ;    end  of,  75  ; 

Preliminary  Provision,  72  ; 

Art.  40,  78  ;   Art.  48,  78 
Doctors'   Commons,  0,  10,  17, 

18,  28,  51  ;    description  of, 

17,  18  ;  in  1598,  118 
Droits  of  Admiralty,  81 


Eldon,  Lord,  1,  28 
Erleigh  Court,  x,  25,  27 


Evans,  Sir  Samuel,  on  De- 
claration of  London,  78 ; 
judgments  of,  84,  85,  88 

France,  Prize  Law  of,  45,  40, 

47 
Freight  on  condemned  goods, 

Stowell  on  law  as  to,  00, 

08,  87 

Grant,  Sir  William,  49,  50 

.Jenkins,  Sir  Leoline,  20 
Johnson,  Dr.,  8,  9,  10,  11,  12, 
18, 14, 15  ;  Stowell's  friend- 
ship with,   8 ;    Stowell    in 
Edinburgh  with,  10 ;  Stowell 
executor  of,  14 
Joint    capture,    Stowell    on, 
00-09 


Liens  on  ships  and  cargoes, 
Stowell  on,  81  ;  approval 

of  Stowc'll's  jtidgmrnls  on, 
H.'J,  81;  Stowc'lPs  Admiralty 
decision  on,  95,  90,  97 

Neutrals,  Stowell's  attitude 
towards,  48,  44 

Oxford  University,  in  eight- 
eenth century,  8  ;  effect  of 
on  Stowell,  4 


115 


116 


LORD  STOWELL 


Privateers,  effect  of  StowelPs 
judgments  on  owners  of,  68 

Prize  Court,  origin  of,  18-21  ; 
place  of,  22 ;  jurisdiction 
of,  30-33  ;  law  of  when 
Stowell  appointed  Judge, 
33,  36,  53,  56  ;  reports  of 
judgments  of,  34,  35,  36,  48, 
56  ;  Stowell's  influence  on 
law  of,  51 

Reynolds,  Sir  Joshua, Stowell's 
regret  at  death  of,  12 

Salvage,    Stowell's    decisions 

on,  98,  99,  100 

Scott,  William,  Stowell's  son,  x 
Sidmouth,  Lady,  his  daughter, 

x,  27 

Sligo,  Marchioness  of,  x,  25,  26 
Stowell,  Lord,  birth  of,  ix,  1 ; 
description  of,  at  Oxford,  2  ; 
description  of  by  Sir  Walter 
Scott,  2,  10 ;  scholar  of 
C.C.C.,  Oxford,  ix,  2  ;  Fel- 
low of  University  College, 
x,  3  ;  Camden  Reader  of 


Ancient  History,  ix,  3  ; 
leaves  Oxford,  ix,  2  ;  death 
of  father  of,  5  ;  on  the  sur- 
render of  Yorktown,  5  ; 
economical  habits  of,  5  ; 
becomes  acquainted  with 
Johnson,  8  ;  appointed 
Judge  of  High  Court  of 
Admiralty,  x,  23,  53  ;  per- 
sonal characteristics  of,  24  ; 
hospitality  of,  24 ;  mar- 
riages of,  ix,  x,  25  ;  politics 
of,  26  ;  Member  of  House  of 
Commons,  26 ;  created  a 
peer,  26  ;  death  of,  x,  27  ; 
his  influence  on  prize  law, 
38  ;  his  judicial  gifts,  40, 
41  ;  attitude  towards  neu- 
trals, 43,  47 ;  permanence  of 
his  judgments,  81,  85,  86, 
91  ;  note-books  of,  104  ; 
portraits  of,  vi;  houses  he 
lived  at  in  London,  ix,  x; 
memorials  to,  x 

Zamora,    decision    of    Privy 
Council,  76 


THE  END 


Printed  in  Great  Britain  by  R.  &  R.  CLARK,  LIMITED,  Edinburgh. 


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